Accessing a competitor’s confidential information

When you submit information to the Competition Commission or Competition Tribunal, you may identify information that is confidential. ‘Confidential information’ means trade, business or industrial information that belongs to a business, has a particular economic value, and is not generally available or known by others. It is important that commercially sensitive information is protected from being exposed to the general public once it has been submitted to the Commission or Tribunal.

Competition authorities, however, depend on commercially sensitive material and confidential information in order to perform their function of promoting and maintaining competition in the country. This means that if during the course and scope of a matter before the Tribunal, a third party to the proceedings wishes to participate in the hearing, it may have access to the confidential information.

The Tribunal recently provided insightful guidance on this issue in the recent decision of the long-running cartel investigation involving Allens Meshco (Pty) Ltd and Cape Gate (Pty) Ltd. The Tribunal stated that legal representatives and economic advisors to a respondent in a matter must have access to confidential documents in order for justice to be achieved and for the hearing to be fair. The Tribunal suggested that when disclosing confidential information to a competitor at a hearing, access to the documents should be granted at a specific place in the presence of the owner’s legal and/or other representatives, the confidential documents should remain in the control of the owner and the people inspecting the documents should be prevented from removing or making copies of the documents. The Tribunal also suggested that confidentiality agreements should be signed by those inspecting the confidential information. If the confidentiality undertakings are breached, then the individuals could be severely sanctioned by their professional association, sued civilly for damages and criminally prosecuted.

Competition hearings do require access to confidential information but it is vital that this information is protected.

Read the decision here.