A Study on Abusing Superior Bargaining Position in the Anti-Monopoly Act and Its Relation to the Act on the Protection of Personal Information in Japan

摘要

This study discusses the intersection between the Act on the Protection of Personal Information (APPI) and the Anti-Monopoly Act (AMA) in Japan, by focusing on abusing superior bargaining position from platform operators. My analysis is based on examinations of the provisions and related guidelines of AMA, the relevant provisions of APPI, and comparisons between the two regulations. Based on these findings: (1) most of the types of abuse which the Guidelines on Abusing Superior Bargaining Position (ASBP Guidelines) presented by Japan Fair Trade Commission (JFTC) overlap with APPI provisions; (2) restrictions on abusing superior bargaining positions could play a specific role by applying itself to profiling activities which APPI might not effectively regulate. However, the possibility for indefinitely expanding the scope of "superior bargaining position" and the scarce experiences of administrative fines would be challenges for AMA. In addition, clarifying the theoretical reason to incorporate privacy and personal data protection into AMA would be a fundamental issue. Other than abusing superior bargaining positions, cooperation or conflict between anti-monopoly law and protection of personal information law need to be carefully examined depending on the situation, such as refusal of deal, and merger. While privacy and personal data must be the first priority in laws designed to protect personal information, competition law and other adjacent laws are increasingly significant. Studying them can offer a different perspective on the protection of personal information.