Abstract:
Monopolistic concerted practices are an existing tool for competition enforcement agencies to regulate algorithmic collusion. To improve the theory for identifying monopolistic concerted practices, this paper examines the challenges it faces in the algorithmic era and suggests countermeasures. Algorithms weaken the method for information communication, making it difficult to prove subjective elements. They also conceal the subjective intention of operators, raising questions about liability. Therefore, in terms of the identification standards, the definition of information communication should be expanded. It should be presumed to exist if the operator knows or can foresee the relevant information of other operators, unless the operator can provide evidence to the contrary. The obligation of public defection of the operator should also be strengthened. In terms of circumstantial evidence, attention should be paid to the “artificial” factors in the design and operation of algorithms, especially the settings that artificially increase transparency or homogenization in algorithms, data, and parameters. Identifying the “artificial” factors can link the operator’s subjective intention with the objective behavior. The operator’s responsibility can then be judged according to the principle of subjective and objective consistency.