Can the reformed Australian competition law stop algorithmic collusion?

Research output: Chapter in Book/Report/Conference proceedingChapterAcademicpeer-review

Abstract

Pricing algorithms are often used by online retailers and e-commerce platforms. The data-driven innovations, including price monitoring and efficient price discrimination that stem from pricing algorithms, can enhance consumer welfare. Meanwhile, pricing algorithms can be deployed as a tool to facilitate collusion and therefore cause consumer harm. When this occurs, the conduct may not necessarily involve a ‘contract’, ‘arrangement’ or ‘understanding’, which were required to be proven to establish an infringement of the old Section 45 of the Australian Competition and Consumer Act 2010 (Cth) (CCA). In November 2017, the CCA was amended to prohibit concerted practices that have the purpose or effect of substantially lessening competition (SLC). However, Australian competition law lacks a definition of the term ‘concerted practices’. The judicial interpretation of that term will be decisive for the scope of the prohibition and the types of algorithmic collusion it may capture. This chapter examines the extent to which the new prohibition on concerted practices may capture algorithmic collusion, as well as the implications on the application of the SLC test.
Original languageEnglish
Title of host publicationAlgorithms, Collusion and Competition Law
Subtitle of host publicationA Comparative Approach
EditorsSteven van Uytsel, Salil Mehra, Yoshiteru Uemura
PublisherEdward Elgar Publishing
Pages67-91
Number of pages25
ISBN (Electronic)9781802203042
ISBN (Print)9781802203035
DOIs
Publication statusPublished - 20 Apr 2023

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