The Digital Markets Act has been in force for a few months. It is therefore worth taking a first look at individual provisions that will occupy us for some time to come. Today, we are dealing with a sector-specific provision on access to data. We are talking about Art. 6 para. 11 DMA, which I am presenting here in excerpts from the German version of the regulation:
The gatekeeper shall provide to any third-party undertaking providing online search engines, at its request, with access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end users on its online search engines. Any such query, click and view data that constitutes personal data shall be anonymised.Art. 6 Abs. 11 DMA
The regulation constitutes sector-specific data access in that it originally grants other companies the right to request access to data from the gatekeeper. The background to this is the considerable value attributed to data treasures when they are exploited in connection with online search engines. Thus, with each search query, a search engine receives further information that it can collect, store and aggregate. This in turn gives it competitive advantages that limit its contestability.
Recital 61 DMA is clear on this by suggesting that gatekeepers should be required to provide other companies providing such services with access on fair, reasonable and non-discriminatory terms to such ranking, query, click and view data collected in relation to unpaid and paid results of consumer search queries, so that such third party companies can optimise their services and attack the position of the relevant central platform services. In doing so, the gatekeeper should ensure the protection of personal data, thus also at its operational risk. In this respect, it is therefore a duty to process.
The provision is limited to data access in connection with representations in the search engine. Thus, it also serves to implement fairness and contestability with regard to this service, but stands independently alongside the prohibition of self-preference in ranking.
The object of access is ranking, query, click and view data in relation to unpaid and paid search results generated by end users via its online search engines. This therefore means that, on the one hand, the third party company can demand very extensive access to the data. On the other hand, the object of access is also limited in such a way that not every data can be requested, but only data that (1.) has a reference to search results and that (2.) is generated by end users via (3.) the gatekeeper’s online search engine. Thus, the provision also attacks the competitive advantage that the gatekeeper company receives through this data resource. But: the claim also only extends as far as ranking, query, click or view data is concerned. Beyond that, the gatekeeper can deny access.
Third-party companies that provide online search engines are entitled to access. This does not necessarily have to be a surface search engine such as Google or its direct competitors. The search function on a website alone should be sufficient to be considered a competitor here. Another argument against a restrictive interpretation is the purpose of contestability and that, in fact, any website with a search function may be capable of developing in competition in such a way that it can dispute the significance of a gatekeeper’s online search engine.
The conditions of access are particularly intriguing. In this context, the provision uses the FRAND formula in Art. 6 (11) p. 1 DMA, which is already familiar from the context of compulsory licences and standard-essential patents. The protective purpose of the provision therefore also speaks for a competitive interpretation of the individual FRAND elements. This gains particular importance in the question of adequacy or reasonableness. For only here, for example, is the scope of the obligation to grant access to be examined. The gatekeeper can only invoke unreasonableness of access to a very limited extent. This is even more the case with the DMA, because firstly, this regulation is intended to ensure contestability, so it is precisely the competitive existence of the gatekeeper that plays only a subordinate role, and secondly, according to Art. 9 and 10 DMA, there are possibilities for the gatekeeper to be relieved of the individual obligations. The FRAND obligation does not impose a negotiating dialogue between the gatekeeper and the access tenant, but applies directly. The gatekeeper must therefore make a FRAND-compliant offer of access itself and is otherwise in breach of the provision.
Insofar as the query, click and view data in the search engine is personal data, the gatekeeper must anonymise it. This also clarifies that the access claim is without prejudice to data protection regulations. The latter are generally discussed in the context of antitrust data access claims as a factual objection for its denial. The anonymisation obligation invalidates this objection.