The legal nature of big data and the twofold purpose of competition: in search for a new regulatory approach

The paper undertakes a critical review of the widely accepted thesis which states that big data are private goods, that need to be regulated by market solutions only. This conclusion cannot be considered as acceptable at both theorical and practical level, and its application can lead to a distortion of competition in the relevant (digital and not only) markets. This paper focuses on the topic of the legal nature of big data, examining the possibility of considering those data as public goods or as commons, and underlining the fact that they very often are resources instrumental to exercise fundamental rights and freedoms, such as the freedom to conduct a business (Article 16 of the Charter of Nice) and the freedom to exercise an economic initiative, as regulated in many EU Member States (in Italy by Article 41 of the Constitution). The reflections of the paper starts from an examination of the case law of both ECJ and Italian courts, which states that competition has a twofold purpose: one at individual level (the freedom to exercise an economic activity), and one at social level (directed towards the protection of community interests) In its conclusions, the paper offers some solutions in order to fill the existing big data regulatory vacuum.