Last month, I participated in a cartels workshop hosted by Concurrences, alongside speakers from Herbert Smith Freehills, the Court of Justice of the European Union (CJEU), General Electric and the European Commission department for competition (DG COMP). The panellists comprised a diverse set of backgrounds and perspectives, which provided for a lively and educational session that covered procedural changes in cartel investigations, privacy concerns that have arisen in competition proceedings and the extent of the Commission’s investigatory powers.
The discussion—particularly the portions from DG COMP’s and CJEU’s speakers—illuminated the intricate web of rules, enforcement actions and challenges surrounding cartel investigations. Some examples include the technology considerations that corporations must address when preparing a response to a request for information and collecting digital evidence during dawn raids.
The combined effects of digitalisation and new, widespread reliance on remote working has led to a significant uptick in the use of cloud-based platforms, video conferencing tools and collaboration applications. Products like Microsoft Teams, Slack, Zoom and WhatsApp—which held little weight in cartel investigations a year ago—are now pervasive and rich sources of critical information. Microsoft Teams adoption is up by more than 50%, and Zoom reports hundreds of million active daily participants in its app.
In turn, the sources of data that authorities may collect have broadened. Organisations need to address technology issues related to having roughly 40% of employees use a personal device for work. Collecting data from employee personal devices can be tricky—requiring organisations to have a sound mobile device management system in place and employee cooperation to enable access to a device. In addition to the difficulties of collecting data from personal devices, the pandemic and worldwide lockdowns have created additional logistical constraints for collecting data.
Data diversity and integration limitations are additional problems—aptly defined in a recent Forbes article as, “managing a disparate collection of data types and databases, all with incompatible storage characteristics, across a range of storage locations (on-site, off-site and SaaS).”
Privacy issues stemming from data stored across multiple jurisdictions, all with different data protection laws are also increasingly cropping up in competition matters. My colleague Sonia Cheng addressed this in a recent article, pointing out recent cases in, “Germany and other countries with competition authorities scrutinising failures to comply with data protection laws as a way to examine competition abuses—especially in the big tech and ad tech arenas.”
Further, recent developments among regulators have indicated that algorithms and AI may in themselves be anti-competitive. This will have a long-lasting impact on how authorities use data to assess anti-competitive practices.
The opportunity in all of this is that new technologies can be leveraged to empower investigations and improve compliance monitoring. This includes:
- Data enrichment to enhance available information and provide data insights.
- Artificial Intelligence (‘AI’) to rapidly identify key communications of interest.
- Data analytics to isolate outliers from both a communication and structured data perspective.
Technology is always evolving. Organisations must become more agile and prepared for the inevitability that emerging data sources will come into scope in a future matter. Their use of certain technologies may be considered a red flag by competition authorities. When applied proactively, though, advanced technologies can also help. With AI and analytics, organisations can monitor for indicators of non-compliance, support and enable defensible data retention and use policies and strengthen their readiness position for future dawn raids and investigations.