Definition
Consent Cartel refers to a situation where competing enterprises voluntarily coordinate their conduct on a particular competitive parameter, thereby reducing independent decision-making in the market. Such coordination may relate not only to price, but also to non-price parameters such as privacy, data access, quality or technical standards, where the objective or effect is to restrict competition or disadvantage rivals.
Commentary
Origin of the term
The concept of Consent Cartel has recently emerged in the context of digital markets, where competition increasingly takes place on non-price parameters such as privacy, data access and other technical standards. While cartels have traditionally been associated with agreements related to price, output or market allocation, recent developments have recognised that competitors may also coordinate on non-traditional aspects of competition like data and privacy. The concept has gained prominence following the Texas v. Google proceedings in 2020, where the idea of "privacy fixing" was introduced1 to describe the use of privacy as a justification for anti-competitive coordination.
This concept finds itself applied in various sectors like digital markets, online advertising, artificial intelligence, e-commerce, digital platforms, telecommunications, data-driven businesses, standard-setting organisations, etc.
Related nomenclature include Privacy Fixing, Data Cartel, Non-price Collusion, etc.
Operation in Practice
In practice, a consent cartel operates where competing enterprises collectively adopt common privacy standards or data-sharing practices that, while appearing to promote consumer privacy, are intended to distort competition. For instance, concerns were raised in the Texas v. Google litigation2 that Google's proposed Privacy Sandbox initiative, though presented as a privacy-enhancing measure, could increase information asymmetries and, by limiting competitors' access to user data, could strengthen Google's position in the digital advertising market.
Relevance vis-a-vis Competition Law
The concept assumes relevance in competition law because enterprises may coordinate not only on price, but also on non-price parameters of competition. As privacy is increasingly becoming a factor that influences consumer choice, it may also become a means through which competitors restrict commercial freedom, increase entry barriers or foreclose rivals under the guise of protecting users. This is particularly relevant in digital markets, where control over data itself may become a source of market power. Consequently, competition authorities must examine whether privacy-related coordination genuinely serves consumer welfare or merely disguises anti-competitive conduct. Businesses should be cautious to ensure that what they term privacy initiatives do not evolve into collusive arrangements.
