21 September 2018
Following up on our recent post about the big data concerns assessed by the Commission in the Apple/Shazam merger (here), the news that the Commission has opened a preliminary investigation into Amazon’s use of third-party merchant data on its Marketplace platform is another sign of the Commission’s continued focus on data in all its guises. The investigation is reportedly based upon complaints received by the Commission, as well as behaviour observed during the e-commerce sector inquiry (see Commissioner Vestager’s announcement here). Although the investigation is still in a preliminary, information-gathering stage, the Commission is examining platforms like Amazon Marketplace where the platform both hosts smaller merchants and acts as a merchant itself. The Commission is considering whether competition concerns arise if the platform is able to collect sensitive data about products sold through a marketplace and then to make use of that data to boost its own sales. As part of the probe, the Commission has issued Requests for Information to online retailers that use Amazon Marketplace (see here). Viewed in a broader context, the reason why the UK has set up an independent panel to examine digital competition (which met for the first time recently – here) is to try and get ahead of these sorts of issues that arise as the e-commerce sector continues to grow. The terms of reference for the panel include questions such as ‘what effect can the accumulation and concentration of data within a small number of big firms be expected to have on competition?’.
Whilst it can be appreciated that marketplace platforms offer great exposure for small businesses that might otherwise struggle to gain access to buyers, they typically pay either a listing fee, commission, or monthly fee to the platforms for that privilege. In addition to receiving this compensation, the platform is in the advantageous position of being able to examine the sales of thousands of small businesses to determine which kinds of products sell well, and which don’t. It seems plausible that by using this data, the platform could increase its share of sales for the most profitable or most popular products by developing its own brand business. And if the sales of small business are at risk of being cannibalised by a platform in this manner, then it is clear that competition concerns may arise as small sellers struggle to compete with the platform’s own brand.
Although the use of data by a platform in this manner is a relatively novel concern, it echoes concerns raised by suppliers of brands in the consumer goods sector. Most supermarkets these days have their own private label ranges, making them competitors to, as well as the retailers for, branded goods. They are similarly in the relatively privileged position of being able to make use of sales data of competitors to support their own offering. It will be interesting to see whether this so-called ‘gatekeeper’ issue will be something the CMA considers as part of its investigation of the Sainsbury’s/Asda merger, which was referred to a phase II investigation on 19 September 2018 (here).