Communication and Collusion in the Digital Age 1 Communication and Collusion in the Digital Age Stephanie Wu Asia Competition Forum Annual Conference December 2017, Hong Kong

Digital Communication 2

The Poster Cartel Cases (US and UK) 1

The PVC Cartel Case (China) 18 firms across 11 provinces, combined market share of 75%. Total fine of 457 million yuan (approx. US$67m) - Largest fine imposed on domestic firms so far. (1%-2% on each firm). The firms fined include both private and state-owned enterprises. NDRC found: price hike + meeting held among competitors 2+4 PVC (Polyvinyl Chloride Polymer): key raw material used in the medical device, construction, home appliance, and courier services industries for making cables, packing materials, etc.

The PVC Cartel Case - Collusion over WeChat Group chat among 93 individuals/executives NDRC: prior proposal (to increase price) + (positive) response = agreement 5

Reflections 1 - Market Structure Less Important 1+4

Reflection 2 - Emojis/Pics as Forms of Expression 4

Reflection 3 - Due Process and Privacy

Reflection 3 - Due Process and Privacy Anti-Monopoly Law of People’s Republic of China, Article 39: “Anti-monopoly enforcement agencies may take the following measures when investigating suspected monopoly conducts: … (3) check and copy documents and materials such as relevant documentation, agreements, accounting books, business correspondence, electronica data of the undertakings being investigated, stakeholders, or other relevant organisations or individuals…” 2

Reflection 4 - Electronic Data as Evidence Civil Procedural Law of the People’s Republic of China, Article 63: “Evidence shall include: … (5) electronic data ….” Interpretation of the Supreme People’s Court on the Application of the Civil Procedural Law of the People’s Republic of China, Article 116: “…Electronic data refers to those information formed or stored in electronic media by way of emails, electronic data exchanges, online chat records, blogs, microblogs, mobile phone short messages, electronic signatures, domain names, etc. Audio and video materials stored in electronic media shall be subject to the provisions governing electronic data.” 3

Reflection 4 - Electronic Data as Evidence “the key point of review of electronic data should be its authenticity, especially as to whether it has been tampered with” - Understanding and Applying the Judicial Interpretations of the Supreme People’s Court on Private Lending, compiled by Du Wanhua, People’s Court Publishing House (2015) Group chat in the form of voice messages - difficult to be notarised. 2

Tools & Suggestions - RegTech 1+6

Tools & Suggestions - Improve Awareness Write good decisions and publish them Improve search experience 3

Tools & Suggestions - Balance Enforcement Power and Protection of Privacy “…Our legal team reviews requests to ensure that the requests have a valid legal basis. If they do, we comply by providing the narrowest possible set of data responsive to the request.”

Thank You! Stephanie Wu Partner, Attorney-at-Law Hui Ye Law Firm Email: stephanie.wu@huiyelaw.com www.competitionlawchina.com