O controle do monopólio e a proteção ao consumidor na economia de dados pessoais: os novos rumos do direito da concorrência

Abstract

The present dissertation is concerned with clarifying whether the mediate purpose of Brazilian antitrust law to protect the consumer, through the protection of the competitive process is achieved based on the traditional legal criteria of this branch. of law, for the purpose of combating the abuse of competition in digital markets. Therefore, the repression of the abuse of economic power, a basic principle of antitrust law, guides the entire investigation, which proposes a rescue of this premise to combat exclusionary practices and harmful mergers carried out in the data market, due to its strong monopolistic tendency. The companies that dominate the new economy repeatedly violate the privacy and freedom of choice of consumers, with profiling practices, targeted advertising, algorithmic discrimination and a notorious information deficit characteristic of digital relationships. In this way, the implications for consumer well-being no longer occur through the imposition of abusive prices, since the vast majority of services offered by digital platforms are free. In this context, the research intends to answer if the rules and principles traditionally applied by the brazilian antitruste authority, to preserve the competitive process, guarantee consumer protection in the face of economic concentration. As a hypothesis, it is argued that consumer well-being has been constantly violated in the data market, and traditional antitrust analysis is no longer sufficient to meet the requirements of the new economy and protect consumers in this market by protecting the competitive process. In order to achieve this goal, the first section of the research will focus on analyzing the evolution and conceptualization of the abuse of economic power as a foundation of Brazilian antitrust law, highlighting how such abuses can be observed in the new economy. In the second section of the research, it will be presented how consumer well-being is being violated in the data-driven market, so that it is possible to highlight the need for antitrust law to intervene in cases of abuse of digital platform dominance, adopting a new conception of the consumer welfare. In the third section of the research, a comparative analysis will be made between North American and European antitrust law, aiming to highlight the legal parameters adopted by the authorities that regulate competition in cases involving the data market in these countries, so that, in the last section, it is possible to conclude whether brazilian antitrust authority has been adopting criteria that consider the specificity of the new economy, fighting the monopolistic character of the data market to ensure consumer well-being. The research uses a qualitative methodological approach, with exploratory, bibliographic and documentary analysis, using the inductive method. The study concludes that the rules and principles traditionally used by the brazilian antitrust authority do not consider the dynamics of the data market nor the other particularities of the economic power exercised by the dominant companies in the new economy, which is why they do not protect the consumer through protection of competition.