“Digital” and “dominance” can fit too well together. There have long been concerns about the way in which digital technology, by the ease with which it can be used to control access to information, technology and services, may result in businesses building and then perhaps abusing a dominant position. Microsoft dominating access to interfaces with their software; DRM being used to reach into the home; media players being manipulated or managed by their content suppliers; markets being partitioned by conditional access technology.
Such concerns were no help for Hutchison Mobile in the High Court which made clear that fishing on the back of suspicion is not enough. Vigilantes against abuse will have to look for stronger leads than this.
Hutchison were seeking pre-action disclosure. They suggested this might show that O2 (UK) Limited, Orange Personal Telecommunications Services Limited, T-Mobile (UK) Limited and Vodaphone Limited were exploiting the steps required for mobile phone number portability as a barrier to entry into the market. Hutchison hoped that documents would show gossip: “we really like this position; keeps out the smaller players”. Of course a request for pre-action disclosure is potentially a draconian step, especially if it does not focus on a small number of highly pertinent documents – and here it looked more like a fishing expedition for cod at the height of their abundance. The request was thrown out on the grounds that the class of requested documents was even wider than would be permitted under standard disclosure – a prospect of picking up some revealing hot gossip was not enough. Pre-action disclosure needed to be tightly restricted to a narrow class of highly relevant documents. Usually not an easy call in a competition law claim.
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