Algorithmic Collusion and Scrutiny: … ACCC’s Information Gathering Powers in the Digital Era

Nathan Feiglin

University of New South Wales Law Journal

Abstract

An important emerging issue is the fitness-for-purpose of the Australian Competition and Consumer Commission’s (‘ACCC’) information gathering powers given the challenges caused by the proliferation of complex algorithms. This article considers potential harms that may be caused to competition and consumers by (i) algorithms that may assist in creating or enforcing vertical or horizontal restraints; (ii) algorithms that enable self-preferencing by dominant platforms; (iii) algorithms that may facilitate the enforcement of anti-competitive contractual restrictions; and (iv) ranking algorithms that may mislead consumers. After surveying the relevant literature – especially in relation to the potential harms of horizontally collusive algorithms – and the state of the ACCC’s information gathering powers under section 155(1) of the Competition and Consumer Act 2010 (Cth), this article proposes an additional two technology-based information gathering powers, including the power for the ACCC to scrutinise algorithms.