Digital Enforcement Summit 2020 – Highlights
A message from the Commissioner
In the Competition Bureau's (Bureau) Strategic Vision for 2020-2024, I made it a priority to foster an open dialogue and collaboration with international and domestic stakeholders, particularly as it relates to competition enforcement in the digital era.
To help achieve that goal, the Bureau hosted its first annual Digital Enforcement Summit – an opportunity for the Bureau and its enforcement partners to share best practices, explore new solutions and tools, and tackle emerging issues – and I am pleased to present the highlights and takeaways from this inaugural event.
Throughout October and November 2020, we followed the stages of an investigation, from detection to resolution, through four online expert panel discussions:
- Our first panel discussed the role of digital intelligence in the pre-investigation stage and advances in the process of evidence gathering.
- Our second panel explored how competition enforcement agencies are adapting to digital investigations.
- Our third panel discussed the rise of new technological solutions and tools to support enforcement in the digital age.
- Our final panel focused on the challenges agencies face with the rapid pace of change in the digital economy and evolving evidentiary burdens in Court.
I sincerely thank all of our panelists and attendees whose participation contributed greatly to the success of the Summit. Over the course of our four online panels, we had a combination of 752 participants join us from across the globe. The discussions that took place helped advance dialogue on emerging issues in the digital economy. I look forward to continuing our collaboration in the years to come.
Commissioner of Competition
- Panel 1 – Developments in Intelligence, Detection and Evidence
- Panel 2 – The Future of Competition Investigations
- Panel 3 – Enforcement Tools in the Digital Age
- Panel 4 – Emerging Litigation and Case Resolution Strategies
The first panel of the Digital Summit explored two key topics: the role of digital intelligence in the pre-investigation stage and advances in evidence gathering, including its collection and processing.
The first stage in any investigation is detecting potentially anticompetitive activity and collecting the necessary evidence. As corporate decision-making becomes more complex, automated, and opaque within digital platforms, detection is an increasingly data intensive process. In response, agencies must continuously evolve how they leverage data as both intelligence and evidence.
Panelists discussed how markets are evolving rapidly, testing enforcers' ability to detect anticompetitive activity that may exist for only a short period of time before adapting to new market conditions. This stresses the importance of digital detection tools, such as bid-rigging screens and newly developed data collection applications to support proactive detection.
Well-trained interdisciplinary teams are critical to ensuring innovative technologies are effective in analysing these complex data sets, and agencies are expanding outside their traditional hiring to create these teams.
Panelists identified cloud computing, natural language processing, and recent updates to competition law as the biggest advances for enforcement agencies in the past five years. Cloud computing allows agencies to process large data sets faster and improve evidence analysis and review. Natural language processing is an emerging artificial intelligence (AI) technology that allows agencies to parse growing volumes of digital evidence and understand contextual information in real time. Updates to competition law allow competition agencies to address and pursue new and complex conduct in the digital economy.
Looking to the future, panelists expect developments in digital regulations allowing for greater focus on information gathering powers, natural data processing, and algorithmic analysis. As digital giants grow and amass more data, there is always a race for government agencies to keep pace. That being said, competition agencies must focus on strategic long-term investments rather than simply having the latest and greatest tools available on the market.
The second panel discussion focussed on recruitment and training, digital tools and technology, and approaches to case management.
Agencies are looking to grow the knowledge, expertise, and skills of their staff to meet the demands of enforcement in the digital economy. Panelists identified a growing need for employees who understand emerging technologies and tools, as well as how to apply them to complex data sets. As a result, agencies are creating new roles and hiring from new professions. Competition agencies are looking beyond traditional disciplines of economists and lawyers and welcoming data and behavioural scientists, and intelligence and IT analysts among their ranks.
Agencies are also looking within their organizations to leverage existing talent and forming specialized teams that work closely with case investigators. The panel discussed the use of specialized teams to help investigators better understand the design and business models of digital markets and develop remedies to anti-competitive activity.
The complex nature of modern competition cases also compels agencies to continually adapt and evolve how they conduct investigations and manage cases. As participants in the digital economy become more sophisticated, the average case involves agencies processing growing amounts of data. From predictive coding to automated identification of anti-competitive activity, agencies are looking to equip their teams with the tools they need to navigate investigations. Panelists also discussed how they are adapting their case management techniques to make use of these tools. For example, some agencies have invested resources in early detection to intervene proactively before harm occurs in a market. While not all agencies have the same formal powers, some agencies have deepened their understanding of digital markets through information gathering techniques such as market studies.
As panelists look to the future, they acknowledged a growing need for sophisticated economic analysis, strategic intelligence, and better understanding of underlying conduct in markets. To ensure effective cross-border investigations, panelists echoed the benefits of greater collaboration between competition agencies to share best practices, tools, and techniques.
Discussion in the third panel centered on the response of enforcement agencies to the challenges of the digital economy, including innovative strategies and tools such as predictive coding, AI, and data management.
Panelists discussed the potentially transformative impact of these new tools and technologies to efficiently and effectively collect and analyze large volumes of evidence in a way that increases the quality control and validation of document review. Panelists also discussed how training and recruitment are crucial to build expertise and increase knowledge of the new tools and technology within organizations.
Digital tools discussed included data analytics, screening, and open-source intelligence. These tools allow agencies to target strategic sectors for analysis using algorithms to screen for suspicious behaviour and collect information from less traditional sources, such as social media.
Looking to the future, panelists agreed that despite digital transformation, the core of competition agencies' work is unchanged. Although technologies give opportunities, panelists discussed concerns over the increased challenge of communication for investigators. For example, platform use of self-destructing encrypted data makes it difficult to collect repositories of evidence to inform investigations. Growing volumes of evidence create implications for resources, investigation timelines, and disclosures. The evolution of the digital economy will motivate agencies to keep pace by increasing their capacity, and finding the balance between traditional methods and innovative strategies.
The final discussion centered on the pace of technology, evidence related issues, and alternative case resolutions among other enforcement-focused topics.
Panelists reflected on the fast-paced nature of technology and markets. Some argued existing anti-trust enforcement tools, interventions that often take years to execute, are not suited for digital markets. In the time it takes to build an investigation, large platforms may gain substantial, entrenched market power. Despite this, panelists maintained a positive outlook, highlighting how agencies have built up their digital capacity through digital units, hiring of new skills sets such as data scientists, and leveraging of technology, such as AI. Panelists agreed international cooperation complements these new technologies and tools, allowing enforcers to learn from previous experience and share best practices.
Panelists discussed how specialized tribunals and adjudicative functions have adapted in response to digitization. Courts move more quickly, allowing for electronic hearings and the ability to provide electronic disclosure obligations. Panelists also discussed how consent agreements can be an effective and efficient way of coming to resolutions and remedying conduct. Further to this, some agencies with market study powers stressed that these powers allowed them to conduct inquiries into digital platforms, allowing for big interventions in important markets. Panelists concluded that agencies and firms would continue to adapt to digitization by leveraging all tools and technology at their disposal.
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