Algorithmic Collusion : An Emergent Problem

Introduction

The days of travelling from one location to another in pursuit of products and services are
long gone. The internet has restricted the world and revolutionized the economy. No area of
life remains where technology has not creeped in. We belong to an era where the smartphone
has become mightier than the pen. The emergence of big data and the advance of
computational power through machine learning has launched a new breed of algorithms that
contribute to a variety of business decisions. While the possibilities and advantages
algorithms open for firms and consumers is infinite, its unbridled stride cannot be
overlooked. The sheer complexity and lack of transparency behind the algorithms used by
businesses today has opened floodgates of a myriad potential threats to healthy competition.
The most noted example has been in pricing algorithms which are utilized by companies in
order to track the price of their competitors. Such algorithms open the possibility of price
collusion by companies without even having to meet in order to do so. Gone are the days
when meeting of minds was inadvertent in market collusion activities, now only algorithms
have to “sync up”.

Questions Presented

The paper focuses on answering the following research questions: Whether the advent of
algorithmic data analytics and decision-making lead to collusion between competitors in the
market? What are the characteristics of such collusion? What possible solutions may be
developed to tackle the potential competitive harms of algorithms?

The New Age of Algorithms

The word ‘algorithm’ lacks a universal definition1. In one of the most commonly expounded
definition, it is understood to be a series of logical steps and rules. 2 While algorithms predate
the era of computers, they are most commonly associated with them. As computers have
evolved through time, so have the algorithms they run and rely upon. Today, due to the
congruence of the internet, machine learning and the accumulation of big data, algorithms

1
Yuri Gurevich, What is an algorithm? (16 Feb, 2019; 12:44 PM), https://pdfs.semanticscholar.
org/762f/178c7983d7431d04919453c043760d691366.pdf.

2
STEVEN S. SKIENA, THE ALGORITHM MANUAL, 12 (2008).
have emerged as a kind of artificial intelligence.3 The digitization of the economy along with
a boom in E-commerce has led to high dependence on algorithms. We have become
algorithmic consumers in an algorithm driven economy. 4 Many tech companies have been
utilizing such technologies in a variety of beneficial ways for the consumers as well as the
firms. E-commerce firms like Amazon5 and Over the Top (OTT) Platforms like Netflix 6 have
used such algorithms for predictive analytics, allowing them to cater to their customer’s
needs. These firms track all our activity in their digital environment, recording our likes and
dislikes in order to gain an edge in predicting our future choices.7 Algorithmic analytics is
free from human error and biases, which make them better at decision making than humans.
Moreover, Algorithms are helpful in saving both time and manpower.8

Risks of Algorithms and Market Collusion

Market collusion is defined as any form of co-ordination or agreement among competitive

firms with the objective of raising profits to a higher level than the non-cooperative
equilibrium.9 Collusion can be explicit or tacit, where the former is achieved through
contracts between firms.10 Such explicit collusions are regulated through Competition Law in
most jurisdictions including India.11 However, tacit collusions are left unregulated in most
jurisdictions due to the lack of any quantifiable evidence to show the meeting of minds.

3
Minghua He, Nicholas R. Jennings & Ho-Fong Leung, On Agent-Mediated Electronic Commerce, 15 IEEE
TRANSACTIONS ON KNOWLEDGE & DATA ENGINEERING 985, 985–90 (2003)
4
Elkin-Koren, Niva& Gal, Michal, Algorithmic Consumers, 30 Harv. J. Law. & Technology 309 (2017)
5
Caleb Danzinger “How Amazon used Big Data to Rule E-commerce” (insideBIGDATA, Nov 30, 2019)
<https://insidebigdata.com/2019/11/30/how-amazon-used-big-data-to-rule-e-commerce/ > accessed 29th April
2021
6
Jon Markman “Netflix Harnesses Big Data To Profit From Your Tastes” (Forbes, Feb 25 2019)
<https://www.forbes.com/sites/jonmarkman/2019/02/25/netflix-harnesses-big-data-to-profit-from-your-tastes/?
sh=41e7c8ef66fd> accessed 29th April 2021
7
Salil K. Mehra, Antitrust and the Robo-Seller: Competition in the Time of Algorithms, 100 MINNESOTA L. REV.
26 (2015).
8
Peter Georg Picht& Benedikt Freund, Competition law in the era of algorithms, (MaxPlanck Institute for
Innovation and Competition Research Paper No. 18-10, 2018)
https://www.ius.uzh.ch/dam/jcr:e020bc7845b44e27a08d87a5a0ac902b/Picht%20Freund__C ompetition
%20law%20in%20the%20era%20of%20algorithms__MPI%20Research%20Paper% 20no%201810__SSRN-
id3180550.pdf. accessed 15th June 2021
9
OECD “Glossary of Industrial Organisation Economics and Competition” (OECD, 1993) p 20 para 25
<www.oecd.org/regreform/sectors/2376087.pdf.> accessed 29th April 2021
10
OECD “Glossary of Industrial Organisation Economics and Competition” (OECD, 1993) p 20 para 25
<www.oecd.org/regreform/sectors/2376087.pdf.> accessed 29th April 2021
11
Competition Act, 2002 § 3(1)
However, tacitly collusive behavior allows firms to raise prices and suppress output to the
detriment of consumers, like any explicit anti-competitive agreement.12

The advent of complex modern algorithms has opened a Pandora’s Box which might increase
collusion in digital and traditional markets alike. There are two broad ways in which
collusion may be achieved by algorithms, the first is by facilitating market adjustments in
order to give effect to a pre-existing collusive contract between competitors. 13 Remedies
against such express collusion already exist in most competition law jurisdictions. The
second way algorithms produce collusion is through machine learning, the algorithms of
competing firms adapt themselves in a way that they collude with other algorithms without
human intervention.14 A prime example would be price collusion, whereby algorithms of
different firms track and predict the behavior of competitors and consumers and employ
strategies resulting in anti-competitive results like price collusion.15 The general consensus
remains that Competition Law as it exists is incapable of handling such collusion.16

Structural Factors Facilitating Algorithmic Collusion

Economists believe that underlying factors in the economy are responsible for increasing
collusive behavior in the market 17. These include structural factors. Structural characteristics
of the industry like number of firms and barriers to entry may affect market collusion. The
larger the number of firms in the market, the more difficult it is to collude as collusion would
require rallying many firms. Moreover, the incentive derived from such a collusion would be
less as every firm will get a fraction of the anti-competitive gains. 18 The biggest change that

12
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 20
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
13
Ariel Ezrachi& Maurice E Stucke,Artificial Intelligence & Collusion: When Computers Inhibit Competition, 18
(Oxford, Working Paper CCPL (L) Paper no. 40, 2015), http://ssrn.com/ abstract=2591874.
14
Ezrachi, Ariel&Stucke, Maurice E., Two Artificial Neutral Networks Meet in an Online Hub and Change the
Future (Of Competition, Market Dynamics and Society), (Oxford Legal Studies Paper No. 24,2017),
https://ssrn.com/abstract=2949434.
15
Atul Kaushik “Competition Law and Digital Economy: Identifying Emerging Challenges” (Centre for WTO
Studies, IIFT June 2019) CWS/WP/200/52 p. 24
<https://wtocentre.iift.ac.in/workingpaper/WorkingPaper52.pdf> accessed on 28th April, 2021
16
Joseph E. Harrington, Jr., Developing Competition Law for Collusion by Autonomous Artificial Agents (The
Wharton School Working Paper,2018),http://assets.wharton.upenn. edu/~harrij/pdf/Collusion%20and
%20Autonomous%20Pricing%20Agents.pdf.
17
Ivaldi, M., B. Jullien, P. Rey, P. Seabright and J. Tirole (2003), “The Economics of Tacit Collusion”, Final Report
for DG Competition, European Commission,
http://ec.europa.eu/competition/mergers/studies_reports/the_economics_of_tacit_collusion_en.pdf
18
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 21
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
algorithmic collusion brings is the fact that firms do not need to rally together and sign-up
anti-competitive agreements. The number of firms become immaterial as algorithms allow
coordination to take place in much more diluted markets than was traditionally possible. In
this light the OECD has stated that “the small number of firms is an important but not a
necessary condition for algorithmic collusion to take place.” 19
On the other hand, having high barriers to entry in the industry makes it easier for firms to
collude as the number of firms remain less, whereas decrease in barriers has an opposite
effect. Industries that have been using algorithms like e-commerce, OTA, OTT and social-
media platforms already enjoy a high natural barrier to entry “such as economies of scale,
economies of scope and network effects”20. This allows such companies to become more
powerful in the market as they accumulate more user data which allows their algorithms to
adapt faster to changing times.

Market transparency also affect collusion in market. More transparent markets allow firms to
monitor other cartel members actions and allows them to punish such members if any
deviation from collusive agreements is noticed. The advent of algorithms has made it possible
for firms to track their competitors’ activities and also the activities of their consumers. Since
all firms depend on largely the same data set and have similar algorithms which are trying to
achieve similar objectives, what results is a transparent market whereby firms are aware of
their competitive environment. It has also been pointed by some scholars that the realization
that markets are increasingly becoming more transparent due to the use of algorithms, will in
fact incentivize firms to make their data public, which would lead to even more
transparency.21 In a prime example, the Chilean Government mandated petrol retailers to post
prices on a Government website and regularly update it. It was found that such a regulation
led to a 10% increase in petrol prices in Chile. 22 The French and the German competition
authorities observed the increase in market transparency that has accrued due to algorithm:

19
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 21
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
20
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 21
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
21
Ezrachi, A. and M. E. Stucke (2016), "Virtual Competition: The Promise and Perils of the Algorithm Driven
Economy", Harvard University Press, United States.
22
Bundeskartellamt, Final Report on the Fuel Sector Inquiry, (May 2011),
https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Sector%20Inquiries/Fuel%20 Sector%20Inquiry
%20-%20Final%20Report.pdf?__blob=publicationFile&v=14.
“Even though market transparency as a facilitating factor for collusion has been debated for
several decades now, it gains new relevance due to technical developments such as
sophisticated computer algorithms. For example, by processing all available information and
thus monitoring and analyzing or anticipating their competitors’ responses to current and
future prices, competitors may easier be able to find a sustainable supra-competitive price
equilibrium which they can agree on.”23

Algorithms affecting Express Collusion

Monitoring Algorithms

Monitoring algorithms refer to such algorithms that merely monitor the business
environment, competitors behavior and consumer behavior and offer immediate retaliation to
any possible deviation.24 Therefore, such algorithms are a rather powerful tools for cartels to
monitor and check any deviation from the anti-competitive agreement.25 Both the US and the
UK has already faced cases wherein firms under an anti-competitive agreement adapted their
pricing in terms of the changing market dynamics using pricing software and algorithms. 26
However, such algorithmic collusion can easily be tackled through the existing competition
law tools as they emanate from an underlying anti-competitive agreement as it is traditionally
understood in competition law.27

Parallel Algorithms

The biggest hindrance to cartelization remains the fact that the market has become
increasingly complex and dynamic. However, firms can adapt similar algorithms that may
automize the tracking of changing market characters and produce individualistic results for
each firm in the cartel which allows to sustain the cartel. 28 The problem is aggravated by the
23
Autorité de la Concurrence and Bundeskartellamt (2016)
24
Bhaduria & Vyas, Algorithmic Collusion; The Limits of Antitrust Enforcement, Nirma University Law Journal:
Volume-8, Issue-2, July-2019 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3443009> p. 93
25
OECD, ALGORITHMS AND COLLUSION – BACKGROUND NOTE BY THE SECRETARIAT(2017),https://one.
oecd.org/document/DAF/COMP(2017)4/en/pdf.
26
U.S. Department of Justice, E-Commerce Exec and Online Retailer Charged with Price Fixing
Wall Posters (10 Feb, 2019; 10:29 AM), http://www.justice.gov/opa/pr/e-commerce-exec-andonline-retailer-
charged-price-fixing-wallposters.
UK CMA, Decision of the Competition and Market Authority: Online sales of posters and
frames Case 50223, (10 Feb, 2019; 07:34 PM),https://assets.publishing.service.
gov.uk/media/57ee7c2740f0b606dc000018/case-50223-final-non-confidential-infringementdecision.pdf.
27
George Alon Hay, Anti-competitive Agreements: The Meaning of ‘Agreement, (Cornell Law Faculty Working
Paper No. 105, 2013),http://scholarship.law.cornell.edu/clsops_papers/105.
28
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 27
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
emergence of firms providing algorithm services outsourcing and algorithm software
products. A prime example of such firm is Boomerang Commerce. 29 Such third-party services
provide greater incentive for their use as firms don’t have to spend manpower and time
developing their own algorithms and outsource the same.

Interestingly, in a case against UBER the Competition Commission of India rejected the
complainant’s contention that UBER’s algorithmic pricing for rides taken by its drivers
amounts to a price fixing agreement.30 The complainant alleged that algorithmic pricing killed
competition between cab drivers that existed prior. However, the CCI was of the view that
the decision to be bound by the price decided by the algorithm is a unilateral decision that
drivers take. Such unilateral decision cannot be equated to a meeting of minds of all drivers
which would result in anti-competitive agreement. While this view is permissible as the facts
only relate to different UBER drivers, however if the situation was different and both UBER
and Ola in India had the same pricing algorithm, it would pose grave challenges to market
competition.

Algorithms Facilitating Tacit Collusion

Modern algorithms are very sophisticated and often utilize machine learning to constantly
adapt to changing stimulus. This ability to analyze, learn and adapt allows algorithms of
different firms to align their outcomes without any express agreement between the firms.
Therefore, algorithms opens new gates for tacit collusion between firms.31 The problem is
that tacit collusions are not subject to any intervention under Competition Law as there exists
no way of proving meeting of minds in the lack of communication or agreement between
colluding competitors.32 It has been noted that Algorithms are similar to the oligopoly
problem faced by Competition Law.33 Oligopoly problem refers to a situation wherein the
interdependence and self-awareness of competitive rivals (like in an Oligopoly) results in
tacit collusion. The oligopoly problem is not tackled by competition law in most jurisdictions

29
Boomerang Commerce, Our Story, <http://www.boomerangcommerce.com /about/.>
30
Samir Agarwal v. ANI Technologies Pvt. Ltd., Case No. 37/2018.
31
Spencer Meyer v. Travis Kalanick, No. 16-2750 (2d Cir. 2017).
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 27
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
32
IoannisLiannos and Damien Geradin, The ‘Oligopoly Problem’ in EU Competition Law, in RESEARCH
HANDBOOK IN EUROPEAN COMPETITION LAW, (Edward Elgar Publishing, eds., 2013).
33
Mehra, S. K. (2015), “Antitrust and the Robo-Seller: Competition in the Time of Algorithms”,
Minnesota. Law Review, Vol. 100,
<www.minnesotalawreview.org/wpcontent/uploads/2016/04/Mehra_ONLINEPDF1.pdf>
as it is not a collusion through anti-competitive agreements and the algorithm problem faces
the same fate.

It has been recognized that tacit collusion is more likely to occur in markets having fewer
competitors, higher transparency, high barriers and high frequency of interactions. 34 As
already noted, algorithms facilitate the existence of many such factors. Moreover, most tech
companies involved in e-commerce, search engines, web browsing, OTA and OTT
businesses already enjoy a high entry barrier, therefore increasing the likelihood of collusive
behavior. Therefore, conscious parallelism can easily be achieved between firms utilizing
algorithms without a conscious meeting of minds.35

It is important to note that all the above mentioned kinds of collusion have been discussed
from a prime standpoint of digital and tech companies, however, algorithms post a significant
threat even to traditional industries. While the use of algorithms in tech, e-commerce, OTT,
OTA and other services in the online space is quite common and constantly observing an
upward flux, traditional industries not dependent on tech may also be driven to use algorithm
and data analytics to enhance the prowess of their businesses.36 The automation of traditional
industries and the advent of Artificial Intelligence may accelerate the continual reliance of
such industries on algorithmic data analytics. 37 Simulation experiments have been conducted
to determine whether algorithms can lead to tacit collusion and the results have shown that
the prices and profits that are reached in such simulations are close to monopolistic levels.38

Discussion

It must be noted that that the common consensus remains that the value added by algorithms
to both firms and consumers far outweigh the risks it poses to competition in the market.
Therefore, any attempt to outright ban them is not a desirable option. In this section we will
analyze the various solutions jurisdictions may adapt in order to create a framework of laws

34
J. E. Jr. Harrington, A Theory of Tacit Collusion, Economic Working Paper, The John Hopkins
University,http://www.tsefr.eu/sites/default/files/medias/stories/SEMIN_11_
12/ECONOMIC_THEORY/harrington.pdf.
35
Eastman Kodak Co. v. Image Tech. Servs. Inc., 504 U.S. 451, 466–67 (1992); Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U.S. 209 (1993). Also, see Phillip E. Areeda, Herbert Hovenkamp& John L.
Solow, Antitrust Law, (1998).
36
McKinsey&Company “The Age of Analytics: Competing in a Data Driven World” (McKinsey&Company,
December 2016) p. 29 < https://www.mckinsey.com/~/media/mckinsey/industries/public%20and%20social
%20sector/our%20insights/the%20age%20of%20analytics%20competing%20in%20a%20data%20driven
%20world/mgi-the-age-of-analytics-full-report.pdf> accessed 29th April 2021
37
OECD (n 7) p. 33
38
Bruno Salcedo, Pricing Algorithms and Tacit Collusion (2016), http://brunosalcedo.com/ docs/collusion.pdf.
that enable the full potential of algorithms while protecting consumers and competition from
its ill side effects.

The necessity for a more nuanced definition of ‘agreement’

Since the most emphatic problem arises from the fact that algorithmic collusions are by their
very nature tacit, they escape any culpability under competition law in most jurisdictions.
However, a seemingly straightforward solution to this problem remains the change in the
definition of ‘agreement’. While most countries accord that agreement signifies a meeting of
mind, in law, such meeting can only be proved through express behavior of parties like
signing of a contract, written communication or conduct. Although, no external behavior
accrues from algorithmic collusion there still exists the core element of meeting of mind in
such collusion. The little behavioral cues that might accrue like parallel price changes are not
sufficient to prove collusion as such behavior may occur from other reasons too.39 The change
in the conception and definition of agreement in anti-trust law is not new and has been
conceived as a possible solution to oligopoly problems. 40 It is imperative to note that various
antitrust instruments already contain the principle of concurrent meeting of mind at the core
of the definition of Agreement. The European Court has noted that an agreement reflects “a
concurrence of wills between economic operators on the implementation of a policy, the
pursuit of an objective, or the adoption of a given line of conduct on the market, irrespective
of the manner in which the parties’ intention to behave on the market in accordance with the
terms of that agreement is expressed.” Therefore, the sine qua non for such a definition of
agreement is for a meeting of minds to occur. Although far from being perfect, such a
definition contains the seeds of a nuanced definition required to tackle tacit collusions.

Imputing Liability

Another possible solution to algorithmic collusion remains imputing liability on firms that
occupy algorithms for pricing itself. However, this solution poses various problems. The
most apparent problem is the fact that such a solution ostensibly seems like a blanket ban
which would prevent firms from utilizing algorithms at all, which as already mentioned is not
a desirable policy objective. Moreover, the fact that algorithms are AI dependent and employ

39
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 36
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
40
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 36
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
complex Machine Learning Systems makes it difficult to impute its actions to its creator. 41
Since the AI decides the actions of the Algorithm, it could very much be possible that the
creator never intended the action chosen by the algorithm.

Regulatory Control

Another way the ill effects of algorithms on market competition can be curtailed is through
the creation of a specialized regulator to oversee the various algorithms used by different
firms and their effects in the market. Academics have already begun calling for the
establishment of a global internet and data regulator. 42 An AI regulator has also been
proposed, which can impute liability on firms utilizing AI in a manner that violate
commercial and civil laws.43 However, these are but islands in a vast ocean of free digital
markets. Globally the world has been slow to begin regulation of digital space and it largely
remains free and subject to consumer driven changes. While this has certainly helped in the
boom in digital economy, it has become imperative that some regulation needs to be brought
in. Moreover, these new areas of technology like AI, Big Data and algorithms are quite
complex and need specialized treatment rather than fitting into the existing regulatory
framework.

Towards Transparency

The most widely accepted immediate solution seems to be to increasing algorithmic

transparency. The EU commissioner and Angela Merkel, the German Chancellor have
requested Big Tech to make its propriety algorithms public.44 The US Public Policy Council
of the Association for Computing Machinery has published a set of principles for algorithmic
transparency which are intended to strike a balance between the harm and benefits of
algorithms.45 The major reason intent behind pushing for transparency seems to be that once
41
Ezrachi, A. and M. E. Stucke (2016), "Virtual Competition: The Promise and Perils of the AlgorithmDriven
Economy", Harvard University Press, United States.
42
Gawer, A. (2016), “Competition Policy and Regulatory Reforms for Big Data: Propositions to Harness the
Power of Big Data while Curbing Platforms’ Abuse of Dominance”, note submitted to the Hearing on Big Data
of the 126th meeting of the OECD Competition Committee,
https://one.oecd.org/document/DAF/COMP/WD(2016)74/en/pdf.
43
Scherer, M. U. (2016), “Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and
Strategies”, Harvard Journal of Law & Technology, Vol. 29, No. 2, pp. 353-400,
http://jolt.law.harvard.edu/articles/pdf/v29/29HarvJLTech353.pdf.
44
OECD “Algorithms and Collusion: Competition Policy in the Digital Age” (OECD, 2017) p. 47
<https://www.oecd.org/daf/competition/Algorithms-and-colllusion-competition-policy-in-the-digital-age.pdf>
accessed 28th April 2021
45
USACM (2017), “Statement on Algorithmic Transparency and Accountability”, Association for Computing
Machinery, US Public Policy Council, Washington, DC,
www.acm.org/binaries/content/assets/public-policy/2017_usacm_statement_algorithms.pdf.
algorithmic source code is made public, it could be reverse engineered to determine if it has
potential for conducting tacit collusion. However, the solution does not remain as
straightforward because even if the source code for an algorithm is revealed, the decision
making of algorithms depend intimately upon AI and Machine Learning systems, which have
autonomous decision making which utilizes highly complex codes and Big Data. Therefore,
even by having a source code of an algorithm, it would be impossible to predict all its
potential effects.

Conclusion

The challenges that algorithms pose to desirable and healthy competition cannot be
understated. As has been observed, threats from algorithms exists in the form of active and
express practices of collusion. Cartelization is made easier by algorithms. Moreover, what
once existed as natural barriers to cartelization have disappeared due to algorithmic analytics.
The problem posed by algorithms due to the potential to cause tacit collusion is even greater
than its aid to cartelization. Such tacit measures have rarely been intervened by Competition
Law as tacit measures lack any proof of intention or meeting of minds of colluders.
Therefore, it is imperative that new strategies be developed and implemented to counter the
ill of algorithmic tacit collusion. One possible solution is the changing of the definition of
agreement in context of competition law itself by including more nuance situations of
meeting of minds like through algorithms. Another solution to the tacit collusion problem is
imputing liability on the use of certain algorithms like pricing algorithms. However, such a
move will encroach harmless algorithmic use as well. Developing market regulation by a new
regulator specializing in modern AI technology, internet and algorithms can provide with
possible long terms solutions by balancing the various interests in favor of algorithmic
economy along with its harmful effects. Lastly, increasing algorithmic transparency might
prove to be a possible solution in recognizing the potential anti-competitive nature of come
kinds of algorithms.