The Lilliputians and Blefuscudians: Unlocking Privacy for Competition Law

Abstract

The legislative decision-making in the field of competition law has been largely of unquestioned borrowing, expecting foreign transplants to suit local needs. This has compromised the ability of legislation and regulations to be acceptable and effective in the country. Rather than looking to the West for persistent guidance, we need to cogitate on the Preamble to the Indian Constitution to derive legitimate directions for India’s policy decisions. India needs to map out the Competition law by keeping the non-negotiable principles of justice, fairness and equity from the Constitution in their scruples. The paper argues that safeguarding consumers’ right to privacy is an important goal of competition law. The paper aims to decipher objective principles through which privacy can be measured. These principles are basic and cannot be willed or done away with. They form the minimum core of privacy and point towards concrete and controllable factors that should be subjected to minimum interpretative gymnastics. The present paper proposes two things: First, the paper aims to decipher objective parameters of privacy through the K.S Puttaswamy judgement, which declared privacy a fundamental right under the Indian Constitution. Next, the authors have formulated various theories of harm under competition law that get triggered when these parameters of privacy are violated. The authors have then suggested how these theories of harm can be contained ex-ante by imposing obligations on dominant companies through Software integration and Contractual obligations. The ex-ante framework, called privacy by design, will help develop a framework for the regulator to impose such obligations on companies designated as systemically significant digital enterprises. Second, it proposes an institutional framework for ensuring compliance with the said ex-ante regime through three courses of action: Notification (obligations of companies), roadmap (information with easy access), and control interface (directions from users). These software functionalities, when adopted by a dominant entity, shall allow them to safeguard a user’s privacy.