Digital Evidence Gathering in Cartel Investigations

Abstract

Companies increasingly recur to digital communications and storage of documents. The change brought by digitalisation to the way in which companies operate creates opportunities but also a number of challenges for competition enforcement.

Competition authorities may adopt a number of digital tools and resources to strengthen their fight against cartels, which may allow them to search through high volumes of data in a swift manner and with a high degree of accuracy. However, the implementation of these tools may not always be straightforward. A few legal and practical challenges may arise in relation to the protection of the authenticity of the seized evidence and of the rights of defence of the company and its employees. In addition, internal coordination of resources and external co-operation may need to be implemented to ensure the full exploitation of the opportunities offered by these tools. This Issues Note will discuss some advantages and disadvantages of the most common digital tools for evidence gathering, and it will explore some of the legal and practical issues arising from their use, drawing from cases where competition authorities across the world dealt with the delicate phase of evidence gathering in cartel enforcement.

Keywords: Competition policy, competition enforcement, evidentiary issues, evidence, digital evidence