데이터 기반 시장에서의 개인화 가격설정(Personalized Pricing)에 대한 경쟁법적 검토

Personalized pricing refers to predicting the maximum willingness of individual buyers through an algorithm with information on the buyers and setting a price adjusted for each buyer based on this. The concern has been raised that algorithmic pricing can lead to collusion, exclusionary abuse, and exploitative abuse. In particular, in platform transactions where personalized pricing is mainly performed, information asymmetry between undertakings and consumers is very large when consumers are locked to the ecosystem established by market- dominant platform undertakings. Here, the business undertaking’s information collection on consumers is conducted in multiple ways, and the technology for combining and analyzing this information is also very advanced, and this is used in advertisements for the consumer or reflected in transactions with them. As a result, consumers not only suffer from ‘high prices’ than would have been imposed without personalized pricing, but also harm that is difficult to quantify in price. It is ‘fairness’, ‘equity’, and ‘transparency’, which can be said to be the basis and premise of consumer choice. Article 5 (1) 3 of the Fair Trade Act, which regulates the discriminatory treatment of market- dominant business undertakings, cannot be applied to discriminatory acts against ‘consumers’. The regulatory basis for price discrimination against consumers in the current Fair Trade Act can be considered as the ‘consumer interest infringement’ in the latter part of No. 5. of Article 5(1), which is the regulatory basis for abuse committed against ‘consumers’. This is to protect the specific interests of consumers that can be infringed by the exercise of market dominance, and it is reasonable to interpret this consumer interest as widely including the financial and non- monetary interests that consumers have in business relations with market- dominant businesses. If so, the consumer’s interests related to ‘price’ will be included in this, and if there are consumer interests that are infringed by the personalized pricing of market-dominant businesses, they may be subject to the latter part of No. 5. Specifically, when applying the latter part of No. 5 to personalized pricing, the following interpretation may be considered for each requirement. In addition to the level of prices paid by consumers, the ‘consumer interest infringement’ requirement requires consideration of the multi- faceted benefits throughout the process of pricing and payment, such as what factors the price is made up of, whether it is relatively advantageous compared to other consumers in the same transaction, and whether the method of paying the price is reasonable and convenient. In personalized pricing, despite its exploitation and abuse, it will not be necessary to require ‘conduct- causality’ because it is difficult to perform by a business operator who is not in a market dominant position due to its nature, and the behavior itself presupposes some causality with market dominance. The salience requirement basically makes a judgment to identify quantitative differences through comparison, which would be the most appropriate method to determine salience in differences between buyers within the price system applied by market- dominant operators for personalized pricing. Finally, unfairness requirements can take into account various qualitative aspects that are difficult to grasp in terms of quantity, the effect of personalized pricing behavior that violates consumer confidence in price transparency and equity, and the effect of violating the control of information as a data subject by using consumer information for pricing without or beyond his consent. Arguments related to the justification of business operators, such as whether there is a cost difference that justifies the discriminatory imposition of prices, and whether there is an effect of increasing consumer welfare that offsets the effect of infringing on consumer interests, should be considered here.