Predatory technology — a viable antitrust concept?

By Sophie Lawrance

A case announced in the US earlier this month could have been designed to tick as many ‘topical’ boxes as possible, ranging as it does over the financial sector, big data and the possibly anti-competitive use of technology. The Department of Justice investigation concerns so-called high-speed stock trading, where traders use specialised technology to beat other investors to deals, raising prices for those other investors and making a cut for themselves in the process.

Not all of the reports mention the possibility of an antitrust investigation at all, many referring only to possible breach of the insider trading rules. But if antitrust is in play, how will it deal with an issue that seems, at heart, to be about the design and use of a doubtless clever and innovative technology, which also happens to hurt people?

I’m not a US antitrust lawyer, but it seems that US law to date has been robust on this issue — in cases such as Eastman Kodak and Allied Orthopedic, the US courts have rejected the idea that there is any duty to curtail product innovation just because it may harm others — indeed, innovation is regarded as the essence of competitive conduct…

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