Information sharing between actual or potential competitors raises familiar but difficult questions for competition policy. For the purposes of this paper, information sharing refers to the communication, provision or making available of commercially relevant information between competitors, including information sharing that occurs indirectly through intermediaries, platforms or automated tools and public disclosure (UNCTAD, 2011[1]).1 Such disclosures can improve market functioning by reducing uncertainty, reducing transaction costs and supporting planning, but they may also reduce strategic uncertainty in ways that soften rivalry, facilitate co-ordination or help sustain cartel conduct. As the risks and benefits turn on multiple features of the information sharing and its setting, drawing clear lines in guidance and case law is challenging. A review of information sharing is timely for three reasons:
Economic research: Recent economic research has refined some of the traditional heuristics used to assess information sharing, most clearly by showing that information often treated as lower risk, especially aggregated data may still facilitate co-ordination where it allows sufficiently precise inference about rivals’ conduct.
Enforcement practice: Several jurisdictions now recognise information exchange as a standalone infringement, yet continue to diverge in legal characterisation, evidentiary thresholds and the extent to which such exchanges are assessed under by-object/per se-type approaches or through effects-based/rule-of-reason analysis.
Technological changes: Markets are increasingly becoming more concentrated and digitalised. Firms now access vast quantities of data and use new sharing mechanisms, such as algorithmic pricing tools, data intermediaries and even artificial intelligence agents, often without explicit bilateral contact.
For competition policy, the key question is not whether information sharing is harmful in the abstract, but which features of a given disclosure reliably predict competitive harm and can support workable legal rules. This paper focusses on the implications of information sharing for collusion and other forms of co-ordinated conduct, including bid rigging and disclosure practices insofar as they facilitate co‑ordination.2
The paper is structured as follows:
Section 2 sets out the economic framework for assessing information sharing. It discusses the circumstances in which information sharing may generate efficiencies, the mechanisms through which it may harm competition, and the factors that shape risk, including market structure, the nature of the information, the channel of disclosure and new technologies.
Section 3 examines how these economic risk factors are reflected in enforcement practice, guidance and advocacy. It reviews the legal treatment of information sharing as part of cartel conduct, as a standalone infringement, and within horizontal co-operation arrangements. It also considers the role of intermediaries, including trade associations, digital platforms and algorithmic tools, and the use of guidance and advocacy to support legal certainty.
Section 4 draws together the main takeaways for competition policy.