Dr Arianna Andreangeli, Senior Lecturer in Competition Law, Edinburgh Law School, University of Edinburgh — Written evidence (NTL0038)

1. The author

I am an academic based in the above institution.  I have researched and written extensively in the field of domestic and international competition law, both substantive and procedural.  My 2008 monograph, EU competition enforcement and human rights (2008: E Elgar, Cheltenham), addressed issues of compliance with European human rights standards in the context of the enforcement of the competition rules in the EU and, in a number of aspects, the UK legal systems. 

2. Scope of the submission

This submission discusses the impact of artificial intelligence on the application and enforcement of the competition rules in the UK.

3. Introduction

The growth of e-commerce has revolutionised how the business world works today.  The extensive use of tools such as pricing algorithms, personalised advertising and automated payment processing has brought benefits in terms of efficiency in commercial transactions, consumer choice and potentially, lower prices and better services.  However, it has also created new challenges for the agencies that are competent for the application of the rules governing the behaviour of economic entities, most notably competition law.

The expansion of electronic communications and the digitisation of economic exchanges raises important questions as to how the competition rules can be effectively applied.  The role of prediction machines, coupled with the wide availability of storage facilities for increasing amounts of data, means that commercial entities can rely on algorithms for the purpose of the supply of goods, the provision of services and the processing of transactions.  Storage of information regarding consumer purchase patterns, preferences and even simple online window-shopping also facilitates the automation of pricing and the personalisation of prices.

To respond to these new challenges competition agencies such as the Competition and Markets authorities have relied increasingly on artificial intelligence tools in the course of their investigation and detection of prima facie anti-competitive behaviour.  Textual analysis tools have proven extremely helpful in the “sifting” of the considerable amount of electronic evidence associated with potentially unlawful arrangements.  However, they present unique challenges for the overall fairness of investigations, to the extent that their usage can adversely affect the ability of the investigated parties to have a reasonable opportunity to understand the charges made against them, to appreciate the assessment of the evidence made by the competition agencies and ultimately to build their own defence against these allegations.

More generally, is it inherently fair to blame undertakings relying on pricing algorithms, for instance, for conduct that might result in the infringement of the competition rules and that stems from the way in which these tools “behave” and in particular mutually influence one another?  For example, let us assume that two competitors come to use similar algorithms and the latter determine prices that are similar in pattern, thus resulting in what at least in appearance, resembles collusive pricing.  Can the companies in question be blamed for what seems to be the “work of the computer”?

4.               Textual analysis algorithms and procedural fairness

4.1.               General remarks: e-evidence in civil and criminal cases—a summary

The usage of textual analysis algorithms has grown in response to the expansion of electronic communications and, more generally, of the digitisation of evidence usually held in documentary form.  The availability of inexpensive data storage facilities, the exponential growth of electronic communications and the growth of electronic commerce as a ubiquitous way of doing business results in the accumulation of vast amounts of information and data in digital form.  US criminal justice literature refers more generally to “second generation evidence” to indicate evidence ranging from information gathered through sophisticated technologies, such as global positioning systems and biometric tools to the outcome of data mining exercises carried out on, among others, social media, search engines and large documentary databases. According to Murphy, this type of evidence has 3 key features, namely, it is database-dependent in the sense that “it relies upon large-scale collections of data to obtain or provide meaning to evidence”; it is “technologically and mechanically sophisticated” and it is often developed, at least in part, “with the aid of private sector entities”.[1]

Against this background, it has become imperative to find ways and tools through which to “sift” usually considerable amounts of potentially relevant information in a number of settings, among which the criminal and civil justice systems and the framework for the application of regulatory measures feature prominently.  It is in this context that the use of textual analysis algorithms, based on the statistical analysis of the frequency with which words are used, on their own or in association with others, has emerged as decisive in easing this process.  

The reliance on electronic tools that are in substance based on prediction and speed, however, carries with it a number of implications.  One of the features of artificial intelligence led analysis is that it is never fully possible to gauge how actually the selection of a particular word or document and, by consequence, of a particular piece of evidence as potentially relevant happens.  This is what is known as the “black box” problem.   According to a recent report published by the Committee on Standards in Public Life, the fact that these systems work on the basis of the analysis of large quantities of data with a view to identifying “patterns and correlations between variables and outcomes” means that while the result of the process—for instance, the selection of documents that, because they contain specific terms, are potentially relevant to the objective of the researcher—is clear, the way in which this outcome is arrived at is often not.[2] 

Furthermore, algorithms are often proprietary in nature—as any other software, they are covered by intellectual property rights that are exclusive in nature.  As a result, they may not be within reach of all users. This carries significant consequences when textual analysis tools are used in contexts where “equality of arms” matters, such as judicial process andca whenever public authorities exercise powers that can affect the legal position of private entities, such as in regulatory fields.  This is the case in respect of competition law enforcement by the CMA, for instance.  Although in a non-judicial context not all the procedural safeguards inherent in a criminal or civil trial must be present, fairness requires that the investigated parties be given the possibility of accessing and commenting upon the case made against them by the public authority concerned and for that purpose to peruse the evidence upon which this case was based.[3]  This basic guarantee is essential to enable the investigated entity to build their response against these allegations. 

Against this background, it is suggested that the use of textual analysis AI tools, while efficiency-enhancing for the public authorities concerned, can have a significant impact on the overall fairness of the proceedings in which this occurs.  It is acknowledged that the right to obtain disclosure of evidence in the course of civil or criminal proceedings is not an absolute right, but can be limited in its scope.  Thus, in England and Wales civil procedural rules require both parties to disclose the documents on which they rely, those that are in their possession and adversely affect his or her own case and those documents that adversely affect or support another party’s case.  If any of these documents are no longer in the party’s possession, the latter must state so and explain what happened to them.  In practice, disclosure is done by means of a list of documents that is e determined on the basis of a standard of “reasonableness”: as was held by the English Court of Appeal in the 2007 Nichia Corporation decision, “the primary documents which are required by standard disclosure are those which adversely affect a party's own case or support another party's case”.[4]  What is “reasonable” depends on such factors as “the number of documents involved, the nature and complexity of the proceedings, the ease and expense of the retrieval and the significance” of the documents being sought.[5]

The approach is different in criminal proceedings: in these cases evidence is usually in the control of the prosecution.  According to the Criminal Procedure and Investigations Act 1996, as complemented by the CPIA Code of Practice and, inter alia, the Attorney General’s Guidelines on Disclosure, “criminal investigations [must be] conducted in a fair, objective and thorough manner”, ultimately to afford the accused a fair trial, in accordance to the standards set out by Article 6 of the ECHR.  For this purpose it is incumbent on the prosecution to “disclose to the defence material which has not been previously disclosed to the accused and which might be reasonably considered capable of undermining” the case made against the defendant.[6]  It should be emphasised, however, that this is not an unlimited obligation: as was emphasised, inter alia, by the 2013 Attorney General’s Guidelines, “material should not be disclosed which overburdens the participants in the trial process, diverts attention from the relevant issues, leads to unjustifiable delay and is wasteful of resources”.[7]   In this context, the weight of other public interests also should be taken into account, for it can affect whether and how specific documents are disclosed in individual cases.  National security or the right to privacy of third parties can act as grounds for exclusion from disclosure for instance.  However this discretion is subject to strict limits: the courts should only allow for “strictly necessary” limitations and any hurdles that the defence should face as a result of them “must be sufficiently counterbalanced by the procedures” applied by the courts themselves.[8]  

Electronic evidence has raised specific questions for courts and litigants in relation to disclosure.  As was stated earlier, when evidence is stored electronically, disclosure in practice means having to trawl through extensive databases, at considerable cost in terms of time and resources.  In relation to civil cases, attention should be drawn to Practice Direction 31B, whose aim is “to encourage and assist the parties to reach agreement” on how electronic documents should be disclosed in a “proportionate and cost-effective manner”.[9]  The Practice Direction calls upon the parties to hold early discussions, ahead of the first case management conference, as regards the use of technology in the disclosure of evidence, with a view to agreeing the categories of documents that should be searched, the methodology for doing so (e.g. which search words, what software should be used) and how the resulting documents should be preserved and exchanged.[10]  Importantly, the Practice Direction sets out also rules governing the presentation of these documents, a factor that is central to ensuring their integrity.[11] 

As to the disclosure of evidence in criminal cases, a distinction is made between disclosure at trial, which is governed by statute, and disclosure of evidence outwith the trial setting—for instance when an application for bail is heard.  In relation to the former, the Criminal Procedure and Investigations Act 2015 and the Criminal Procedure Rules 2015 impose a duty on the prosecution to disclose evidence material that is capable of supporting the case for the defendant and/or undermining the prosecution’s arguments.  Disclosure must take place when the accused is sent for trial (e.g. when the accused is indicted before the Crown Court) and continues throughout the trial, subject to the same disclosure standard.  The accused is entitled to produce a defence statement setting out their arguments against the defence, thereby further qualifying the scope of the prosecution’s investigation.  Furthermore, the accused can apply to the court seeking the disclosure of material which is believed to be in the prosecution’s possession and which meets the disclosure standard above.[12]  When disclosure is sought outside trial, the common law on disclosure is instead applicable: it is therefore incumbent on the prosecution to consider disclosing any material that they regard as necessary to meet requirements of fairness and in the interest of justice.[13] 

Having regard to electronic evidence, Annex A to the Attorney General’s Guidelines on Disclosure.[14]  Annex A calls for cooperation between prosecutor and investigator whenever a case involves large amounts of electronic documents.  The prosecutor is expected to be “open and transparent with the defence” as to how the approach adopted in respect of disclosure. The defence on its part is expected to “play its part” in respect of the identification of the relevant issues in a specific case, so that the latter can be dealt with “justly”, as set out by the Criminal Procedure Rules.  For this purpose, the defence should be “invited (…) at an early stage” of the case to contribute to the determination of the reasonable searches that are going to be conducted in the course of the proceedings.[15]  Annex A sets out a number of guidelines for investigators and concerning the gathering (whether with the collaboration of or upon seizure from suspects or witnesses) and the retention of electronic devices and documents.[16]  Para. 36 ff. of the Annex also deal with the all-important matters of sifting and examination of electronic evidence on the part of the prosecution.[17]

Importantly, para. 41 of the Annex A emphasises that when digital evidence is plentiful investigators can sift and search documents by “sample, keywords or other appropriate tools or analytical techniques to locate relevant passages, phrases and identifiers (…)”.[18]   In this context, the use of “algorithms or predictive coding” is acceptable as a means of reviewing and analysing evidence for purpose of relevance.[19] Investigators must develop a “strategy” indicating how material should be searched and relevant information identified. This strategy must be agreed with prosecutor and disclosed to the court and the defence.[20]

Albeit within the limited remit of this submission, some observations can be made as to the approach adopted in England and Wales as to the discovery of electronic evidence in court proceedings.  In respect of civil e-discovery, Practice Direction 31B has been generally welcomed for its emphasis on the need for, as far as practical, a concerted approach as to the scope, nature and manner of disclosure of digital documents, the commitment to fulsome disclosure of the method and approach to document retrieval, including the use of analytical tools.[21]   It should also be emphasised that the circumstance that disclosure is discussed ahead of the first case management conference allows the court to exercise significant oversight of it, as further safeguard of the overall fairness of the proceedings.[22]

Broadly similar comments have been made as regards discovery in criminal cases.  It has been observed that the law of disclosure—whether at or outside trial—aims to protect the right of the accused to a fair trial and ensure that the hearing is effective.  Having regard specifically to digital evidence, it can be noted that, although Annex A to the Attorney General’s Guidelines is relatively less detailed than Practice Direction 31B, it appears guided by broadly similar principles and concerns, as shown, inter alia, by the emphasis on transparency as regards the strategy that the prosecution adopts and the importance of the role of the court in this context.[23]

4.2.          E-evidence and competition cases: a comparison

The above summary evidences a relatively well-developed approach to e-disclosure and e-discovery in criminal and civil proceedings in England and Wales, ostensibly out of a commitment toward fairness and the effective protection of the right to a fair trial.  Being “criminal in nature”, competition cases are subject to the basic guarantees of a fair trial, as articulated in Article 6(1) ECHR: the UK adopts the “integrated agency” model in the context of competition enforcement.  Thus, the CMA is competent for the application of the rules contained in the Competition Act 1998: it investigates suspected competition infringements, takes decisions and imposes sanctions.  To ensure observance of the right to a fair trial, its decisions are subject to appeal on all aspects, including the merits, before the Competition Appeals Tribunal.  The administrative process is also assisted by a number of important safeguards, such as the right to be informed of the allegations made by the agency via the statement of objections, the right to have access to the investigation file and to make known the views of investigated parties and the right to legal professional privilege for counsel/client communications. 

Accessing the CMA file and more generally how the CMA approaches digital evidence, however, receives far less detailed attention than in judicial settings.  The CMA Guidance on the ‘investigation procedures in Competition Act 1998 cases’ contains general guidelines on the way in which the file can be accessed and how the investigated parties can be heard in writing or orally in the course of the proceedings.[24]  The CMA holds state of play meetings with the parties with a view to ensuring an effective exercise of the right to be heard.[25]  In addition, a Procedural Officer, who is independent from the case-handling team, is competent for deciding over requests for access to the file and any procedural issue that a party may not have been able to resolve with the team or individual responsible for the investigation.[26]  There is no express reference to how disclosure of evidence, especially digital, is carried out, beyond a general indication that the investigating officers will discuss with the investigated parties how access to the investigation file will be provided.  These discussions will take place in writing or at a case management meeting.[27]  The Guidance further states that in some cases the parties will be provided with a schedule of documents and with copies of documents referred to in the statement of objections and with a draft penalty statement.  The Guidance also makes summary references to accessing electronic documents that are of a sensitive nature via confidentiality rings or “data rooms”.[28]  However, this is only decided on a case-by-case basis.  The Guidance is also silent on the question of whether and to what extent the investigated parties can participate to the decision-making process regarding the use of analytical tools and of how the latter are used in individual cases. 

It should be emphasised that the CMA engages in a dialogue with the investigated parties at key stages of the investigation.  However, it is legitimate to query whether there should be a greater degree of formality and predictability as to when and how discussions about how electronic evidence should be searched and analysed by the case-handling officers and as to the extent to which investigated parties and their counsel should participate in the determinations relating to this process.  It is also unclear whether the investigated parties are informed as to how evidence has been sifted—whether key word searches or other analytical tools have been used and what methodologies have been applied, for instance. 

The above position can to some extent be contrasted with the approach to disclosure of evidence, including digital documents, in the course of the appeal proceedings before the CAT.  Sections 20 and 21 of the Tribunal Rules of Procedure discipline the matter of disclosure in relation to appeals against decisions of the CMA.[29]  Separate rules, namely Sections 60 to 65, discipline disclosure in antitrust damages cases, lodged under Section 47A, CA98. In relation to the former, Section 21 states that the CAT will give directions as to what evidence it regards as necessary for deciding the case.  In doing so, the Tribunal will have regard to what is just and proportionate, on the basis of a non-exhaustive set of criteria, such as, inter alia, whether the evidence in question was available  to the respondent at the time in which the decision was made and whether the evidence is necessary to dispense of the case justly.  As to damages cases, Sections 60 to 65 of the Rules establish a general duty on the parties to disclose—namely to state that a specific document exists or has existed—all evidence mentioned in a statement of claim, reply or defence.  They also envisage that at the first case management conference the Competition Appeals Tribunal will decide whether and when a “disclosure report” and an electronic documents questionnaire is required.  The Tribunal will also determine any order in relation to disclosure of evidence at a subsequent case management conference and in that context may give any further direction as to how disclosure should occur.

As for digital evidence, the Rules of procedure refer to Practice Direction 31B in a number of respects.  For instance, in relation to the manner of disclosure in damages’ actions, Section 60(2) empowers the Tribunal to order the production of a filled Electronic Documents Questionnaire as part of the Disclosure Report and to give directions as to how to conduct the search and disclosure of digital evidence.  Section 54(2) also prescribes that discussions concerning e-disclosure should occur at the first case-management conference.  In appeal cases, there are no express references to PD31B; however, it is suggested that the Tribunal, as part of its broad powers of direction and case management, should remain competent to issue directions as to e-disclosure in appeal cases.

In light of the above summary, it is concluded that the disclosure of electronic evidence in competition cases is subject to a plethora of different rules, depending on whether a case is still being investigated by the CMA or, having been the subject matter of an administrative decision, pending before the CAT on appeal. In relation to the latter, it is suggested that the broad case management powers enjoyed by the Tribunal, taken together with the applicability of parts of Practice Direction 31B, should ensure sufficient levels of judicial scrutiny and allow the party challenging the CMA decision to raise any issues concerning the access to the case file and the scope and approach to the disclosure of digital evidence. 

It is however open to question whether the current administrative arrangements governing the gathering of evidence, it analysis and review, including the access to electronic documents as part of the investigating file in the course of the administrative phase of the proceedings can provide a level of transparency and predictability that is appropriate to the nature of competition cases. It is argued that the current guidelines concerning these issues remain relatively vague as to the approach to disclosure of digital evidence, especially on key questions such as whether the investigated parties have knowledge of and can comment on how individual searches are performed, whether they can access the analytical tools used for this purpose and be informed also of the scope of the samples of documents used, inter alia, to “train the algorithms” to this end.  It is acknowledged that the investigated parties and the case-handling officials engage in dialogue on procedural issues at key stages of the process at the case-management conference; it should also be emphasised that the Procedural Officer provides a degree of oversight of matters concerning access to the case-file.  However, is the status quo sufficient to meet acceptable standards of legal certainty, transparency and overall fairness, for the purpose of Article 6(1) ECHR compliance?  This question will be addressed in the following section, when human rights precedent concerning e-disclosure (albeit in a different jurisdiction) will be briefly analysed.

4.3.          E-disclosure and the European Court of Human Rights: the Einarsson case

The previous sections outlined some of the aspects of disclosure of evidence first in a judicial context in England and Wales and thereafter in competition proceedings.  It was argued that while in the former there appears to be a well-developed set of rules and practices ensuring transparency and predictability for respectively, litigants and defendants in criminal cases, in the latter there does not seem to be the same level of detail and certainty when it comes to proceedings before the CMA.  While it is acknowledged that the case handling officials engage in dialogue with the investigated undertakings at various points of the proceedings, there do not seem to be explicit indications of whether the investigated parties can in any way participate in the determination or be informed of how digital evidence was actually sifted for the purpose of the file.

It should be noted that the question of whether and how electronic evidence disclosure can be carried out in a way that complies with Article 6 ECHR was examined by the European Court of Human Rights.[30]  In Einarsson, a case brought against Iceland, the applicant had complained, inter alia, that they had not been allowed access to all the documents gathered by the prosecution or being informed of the nature of the process through which the documents that had been eventually chosen to found the prosecution’s case against them had been selected.  It was also claimed that the defence should have been given the opportunity to replicate the same searches by using the system on which the prosecution had relied.[31] 

The European Court of Human Rights drew a distinction between the “generalised mass” of evidence that could have been potentially relevant and that was subjected to “filtering” through textual analysis software and those documents which, instead, were “tagged” (namely identified on the basis of the search criteria as being potentially relevant) as a result of that selection process.  It took the view that while it would not have been against the right to a fair trial, of which the right to have adequate time and facilities to prepare a defence was a corollary, the situation was different as regards the “tagged” documents.  In this specific respect, the Court emphasised that a process “whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against the public interest in keeping the information secret, cannot comply with” the fairness standards of the Convention.[32]  It therefore took the view that it would not have been “unreasonable” to allow the defence to carry out further searches, using the same software used by the prosecution, to identify exculpatory documents among those selected as basis for the allegations made against the accused.[33] 

It is acknowledged that in the event the Court found no infringement of the Convention on account of the fact that the defence had never made any formal request to carry out these additional searches and had only made generic allegations of unfairness in the treatment of the evidence.[34]  However, it must be emphasised that the decision stressed the importance of ensuring some degree of participation by defence counsel in the electronic search processes and the continued judicial supervision over this important task.[35]  It must be noted that competition cases, while being “criminal in nature”, concern infringements of the law that are not as serious as those to which judicial criminal process applies.  Indeed, drawing such a distinction is in principle legitimate in light of the Convention to take them out of the realm of criminal justice and subject them to processes that are administrative in nature.  In the words of the European Court of Human Rights, “(…) demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect (…)”[36].  In these cases, however, it is essential that the decision of these administrative bodies be subject to appeal before a court that meets the requirements of Article 6 of the Convention in terms of its independence and impartiality, of the adversarial nature of its proceedings and of the scope of its jurisdiction—in this specific respect, the court seized with the review of the decisions in question must enjoy powers of ‘full review’, extending to all matters of fact and of law.[37]

It is undoubted that the presence of the CAT, whose proceedings are adversarial in nature and whose jurisdiction extends to the merits of a competition case, fulfils the above requirements.  Nonetheless, it is legitimate to question whether the current position as regards disclosure of digital evidence in the course of proceedings led by the CMA remains compatible with the demands of fairness that must also apply to the administrative stage of these “composite” cases.  It could be suggested, not without merit, that the circumstance that the CAT can review all aspects of a case once invested of its appeal, including, if deemed necessary, substituting its own view to that adopted by the CMA in the impugned decision would likely mean that any defect concerning access to the file and the disclosure of digital evidence can be scrutinised on appeal, thus ensuring full respect of the appellant’s fairness entitlements. 

However, it is argued that this approach does not take into account the realities of competition enforcement, where not all cases make it to appeal and several are settled without a final, binding decision.  As a result, it is suggested that the CAT would provide scrutiny for only a fraction of the cases in which analytical tools were used in the sifting of digital documents for the purpose of inclusion in the case file. More generally, it is submitted that the absence of express guidelines as to how the CMA will approach the use of algorithmic tools and analytical techniques in the retrieval and selection of relevant evidence would sit somehow at odds with the continued observance of the Nolan principles—namely the seven principles of Public Life—and in particular of the principle of openness.  On this specific point, it should be noted that in a Report published in 2020 the Committee on Standards in Public Life highlighted the existence of a number of deficiencies in the way in which artificial intelligence tools are employed by public authorities.[38]  The report called for all public agencies to “publish a statement on how their use of AI complies with relevant laws and regulations” before these agencies deploy these technologies in the fulfilment of their functions.[39]  It was emphasised that a high degree of openness in this area would be especially necessary in view of the reliance on the part of public authorities on private sector bodies and of the proprietary nature of these technologies.[40]

5.               Conclusions: AI, analytical tools and competition enforcement—what could be the way forward?

Artificial Intelligence has emerged as an increasingly important factor in the way in which many public functions are delivered.  Driven by the expansion of e-commerce and, more generally, of the internet in our lives and in society, these technologies, which allow for the automation of a vast number of processes in the private and public sphere, are now widespread across the spectrum of public functions.  Competition enforcement is no exception and indeed, analytical tools can have a beneficial impact on the effectiveness of the CMA as automation is now commonplace in the way in which markets work.[41]

However, significant concerns remain around how the balance between effective investigations and the observance of basic tenets of fairness can be maintained.  It was shown how being transparent as to how analytical tools are used in the course of competition investigations is not only germane to the observance of the right to a fair trial of the investigated undertakings.   It is also indispensable in contexts where judicial oversight is going to occur ex post, that is, on appeal. On this point, the Einarsson judgment has illustrated that while relying on these technologies is legitimate as a way of ensuring efficiency in the decision of complex cases where evidence is plentiful and digitised, appropriate safeguards must be in place.  Securing transparency in the use of technologies such as textual analysis algorithms also responds to a more general tenet of ‘openness’ which, as part of the Seven Nolan Principles in Public Life, should pervade the whole sphere of public functions.

In light of the forgoing, it is suggested that the CMA should consider not only placing the use of these technologies as part of its investigation “toolkit” on a surer footing, by providing an express statement as part of its Guidance on Cartel Investigations. It should also articulate a set of procedural steps, as part of its dealings with the investigated parties, designed to enhance transparency when it comes to the actual deployment of these technologies in individual cases.  For this purpose, it is suggested that some aspects of Practice Direction 31B could be included. It was illustrated in section 4.1 that in the course of civil proceedings in England and Wales, the disclosure of digital evidence is guided by bespoke rules that seek to balance out the need to ensure the fairness of the proceedings with reasons of procedural efficiency, the need to maintain the proprietary nature of textual analysis software and the confidentiality of evidence, especially documents originating from third parties.  For this purpose, Practice Direction 31B lays out a set of procedural steps that ensure transparency and facilitate oversight in the way in which these new technologies are deployed for the purpose of discovery of evidence.  It is acknowledged that due to the administrative nature of competition proceedings, not all the procedural features that assist a judicial process can be extended to CMA cases.  However, it is argued that the flexible nature of the procedural arrangements provided for by the CA 98 can be modified to address the challenges emerging from disclosing digital evidence.  For the purpose of this inquiry, it is submitted that the CMA might consider introducing additional procedural requirements to its established hearing and access to file practices.  These new steps could encompass: 

-       An express commitment to open discussion with investigated parties of the possibility that automated search tools, such as analytical methods and other textual analysis software, may be used;

-       If these search tools are used, the CMA officers should be transparent with the investigated parties as to their approaches in sifting through and identifying potentially relevant documents.  These exchanges could take place at state of play meetings and should involve a discussion of the methods being used in this context—for instance, the nature of software used, how document samples have been identified for the purpose of training the system, what key words have been used and how documents have been ranked and, on that basis, identified for the purpose of being examined and potentially acquired into the file.

-       Once a decision is adopted, the latter should provide a statement detailing how documents have been searched for the purpose of facilitating the judicial scrutiny of the decision in all its aspects, including those of an evidentiary and procedural nature. 

13 September 2021

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