Manipulation of Information as Antitrust Infringement

The creation and dissemination of distorted information is certainly not unknown. This phenomenon is by no means unexplored; on the contrary, it is the focus of several legal disciplines, from financial services regulation to the regulation of unfair commercial practices. However, from the antitrust law point of view, the relevance of information manipulation behaviors is neither crystal-clear nor much discussed in the literature. Nevertheless, in the current data economy, it is widely held that companies can shape demand not only by offering false and misleading information, but also by distributing unduly persuasive information, meaning information which exploits the cognitive distortions that specifically afflict individual consumers and their distinctive characteristics. The aims of this paper are twofold: to understand whether and under which circumstances the case of information manipulation may constitute an antitrust infringement and to assess in particular, whether antitrust law is suitable to deal not only with the production and distribution of false, misleading or inaccurate information, but also with the creation and dissemination of unduly persuasive information. In detail, after mentioning the academic debate and the more traditional antitrust approach to the issue of information manipulation, this paper will discuss the latest European cases on the topic (AstraZeneca, Google Shopping, Euribor, Libor, and Hoffmann-La Roche), in which, albeit for various reasons, the European agencies and courts effectively weighted market scenarios related to the use of (alleged) false and misleading information.