How Remote are Competition Law Risks When Working Remotely?
As businesses worldwide implement remote working on a scale that most have never experienced before, it is important not to lose sight of competition law compliance when switching to this new environment.
- Contact with competitors
We all have friends – often former colleagues – working across many different sectors; some may work for your direct competitors or up/downstream of your business. As tempting as it might be to discuss how your respective businesses are responding to the economic challenges of COVID-19, it is important to remember not to share any commercially sensitive information – particularly relating to future pricing intentions, geographical areas of focus, capacity or strategic intentions. Anti-competitive conduct remains prohibited and could lead to criminal sanctions, including potentially on individuals.
- Use of personal devices
Mass remote working is placing novel amounts of stress upon existing telecommunications infrastructure. Most businesses do not have dedicated conference call lines available for all staff, and those that do often suffer from technical issues that can be frustrating to employees. The urge to switch to working on personal devices and using non-business approved solutions – e.g. WhatsApp, Skype, FaceTime, etc. – is greater than ever. However, such solutions might not be secure and may expose your business’s commercially sensitive information to greater risks of external access or loss; their use might also contravene company policy.
Competition law generally does not distinguish between “work” and “personal” devices. By conducting business on a personal device, you are likely to be subject to your company’s policies regarding use of such devices; these may require the surrender of your device and/or mailbox, e.g. in the context of a regulatory investigation. Indeed, personal devices might be seized by competition law authorities during an investigation if it appears that they may contain relevant documents or information. The deletion of messages, or leaving chat groups for fear of detection, is not a solution and might also suggest awareness of wrongdoing. A Dutch company was recently fined after employees deleted WhatsApp conversations and/or left WhatsApp groups in the context of an inspection.
- “Hey Siri…”
Remote working is enabling many businesses to continue to function in the face of widespread office closures. However, working outside our secure workspaces presents new issues regarding the protection of confidential and other commercially sensitive information. When working in unsecure environments, it is vital to remain discrete when discussing business matters – you never know who is listening.
Moreover, it has become commonplace for our personal devices to monitor and record our conversations for marketing purposes. This is of particular concern for those working in sensitive sectors: remote working should not undermine any steps taken by your business to maintain confidentiality and protect commercially sensitive information.
While these are certainly challenging times for individuals and businesses, competition law remains applicable. Enforcement history is littered with failed defences that “desperate times called for desperate measures”. To that end, the UK Competition and Markets Authority has already issued a short statement to the effect that competition and consumer protection laws remain unchanged, and that, in particular, it will be paying close attention to pricing practices as businesses respond to the COVID-19 challenge.
From the perspective of competition law, at least, it is still very much business as usual. Employees and businesses can protect themselves by following standard business and compliance procedures as they would in the office, while working remotely.
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