Algorithmic Opacity and Exclusion in Antitrust Law

Italian Antitrust Review, vol. 5, no. 1 (2018)

Fordham Law Legal Studies Research Paper No. 3400208

9 Pages Posted: 10 Jun 2019

Date Written: 2018

Abstract

Traditionally evidence of exclusion was available to those injured by it. If a dominant firm refused to deal with a competitor, perhaps denying an important input, or priced predatorily, there was no difficulty in presenting evidence of the conduct at issue. As means of exclusion became subtler, such as with rebate structures, the conduct was less public, but still evidence was typically available. Rebate terms were often incorporated in contracts, for example, and copies could be obtained from customers. Exclusion by online platforms is very different. When a competitor is injured by, say, a disadvantageous position in search results, the cause is often an algorithm whose function is entirely internal to the dominant firm. In such instances, a private plaintiff may not have access to evidence that would allow it to allege satisfactorily, let alone prove, a violation. This brief note sets out the difficulty this issue poses for competition law.

Keywords: digital economy; competition law; platforms; abuse of dominance; algorithms

Suggested Citation

Patterson, Mark R., Algorithmic Opacity and Exclusion in Antitrust Law (2018). Italian Antitrust Review, vol. 5, no. 1 (2018); Fordham Law Legal Studies Research Paper No. 3400208. Available at SSRN: https://ssrn.com/abstract=3400208

Mark R. Patterson (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-7867 (Phone)
212-636-6899 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
50
Abstract Views
263
PlumX Metrics