Antitrust Chronicle – The Algorithms Have Landed!

Algorithms seem to be on the tips of many antitrust regulators’ tongues these days…

• In 2015, William Baer, then principal deputy associate attorney general at the Department of Justice, stated that “[w]e will not tolerate anti-competitive conduct, whether it occurs in a smoke-filled room or over the internet using complex pricing algorithms.”

• At a conference in February, CMA Chairman, David Currie stated that regulators need to “ensure that the rise of algorithms works to enhance competition, not close it down.”

• At a conference organized by the Bundeskartellamt in March, European Competition Commissioner Margrethe Vestager stated that “we need to keep an eye out for cartels that use software to work more effectively.

If those tools allow companies to enforce their cartels more strictly, we may need to reflect that in the fines that we impose.”

Market players are using data and algorithms in innovative ways, with both procompetitive and potentially anticompetitive effects. How should policy makers, academics and regulators react?

Should, or how should, antitrust authorities spend their precious resources on the potential threat of tacit collusion in the algorithm driven economy? Or are we searching for an oasis in the desert?