When sharing is not caring: the competition law risks of benchmarking data platforms

Competition thrives on uncertainty. Because businesses cannot predict what their competitors will do next, whether on pricing, new products or customer targeting, they must strive to offer better prices, services and innovation. That uncertainty, while good for consumers, can also lead to inefficiencies. Businesses may overestimate demand, over-order inventory or miss market trends. To operate more efficiently, many businesses sign up to benchmarking databases or third-party data aggregators (such as PowerStats or NostraData) to get insights into what is happening in their market.

While this kind of market intelligence can be powerful, it may also involve sharing sensitive information with competitors, and that carries real competition law risk. Regulators in Australia and overseas are paying increasing attention to information exchange between competitors, and recent enforcement action signals that businesses need to tread carefully.

Below, we outline the Australian laws that apply, examine key international enforcement trends, and provide practical guidance on how to minimise competition law risk while still making use of market insights from data aggregators.

Why do data aggregators matter for competition?

The typical model for a data aggregator involves businesses providing their sales or operational data and paying a fee in exchange for data from other industry participants. That data can be aggregated or detailed.

When competitors share non-public information, such as sales volumes, pricing data or future commercial strategies, it can harm competition in two ways. First, it reduces the incentive to compete aggressively, because businesses can simply match competitors’ strategies rather than trying to outperform them. Second, it makes markets more vulnerable to coordinated conduct, where competitors effectively shadow each other’s pricing rather than competing vigorously.

The legal framework in Australia

Australian competition law prohibits two categories of conduct that are relevant to data aggregators:

• Cartel conduct involves competitors entering into a contract, arrangement or understanding (CAU) to fix prices, allocate markets or customers, limit supply or rig bids. It is the most serious prohibition because individuals can face jail time. Information exchange through a data aggregator, without more, is unlikely to amount to cartel conduct.
• Anti-competitive conduct is a CAU or concerted practice that has the purpose or likely effect of substantially lessening competition (SLC) in a market. Businesses can face significant fines for anti-competitive conduct, but unlike cartel conduct, there is no jail time.

The most relevant prohibition for businesses using data aggregators is the concerted practices prohibition, which was introduced into the Competition and Consumer Act 2010 (Cth) (CCA) in November 2017. Before this, the ACCC had to prove an actual agreement or understanding between competitors, which is a higher bar. The concerted practices prohibition was introduced to capture conduct that falls short of an agreement but still produces anti-competitive effects.

The ACCC’s guidelines on concerted practices^[1] define a concerted practice as "any form of cooperation between two or more persons, or conduct that would be likely to establish such cooperation" where "this conduct substitutes, or would be likely to substitute, cooperation in place of the uncertainty of competition."^[2] Importantly, the ACCC’s guidelines confirm that information exchanges through intermediaries, such as data platforms, are within the scope of the prohibition.^[3]

However, a concerted practice alone does not breach the CCA. It must also have the purpose, or have or be likely to have the effect, of SLC in a market. This is a market-specific assessment: the same data platform that is harmless in one market may substantially lessen competition in another. In practical terms, not every instance of information sharing will breach the law, but the risk increases significantly where the information is competitively sensitive and the market conditions are conducive to coordination.

What determines the level of risk? 

Because the concerted practices prohibition requires an SLC in a specific market, assessing risk means looking at both the features of the benchmarking platform and the characteristics of the market in which you operate.

Platform features

The following features of data benchmarking platforms can affect the level of risk for a business participating in the platform:

• Nature of the information: Will the platform provide you with granular, firm-specific data (e.g. a competitor's actual sales figures)? If so, there is higher risk of breaching competition laws. On the other hand, if you will be receiving anonymised and aggregated data, this presents a lower risk because it is more difficult to infer a competitor’s future strategies from such data.
• Timeliness: If the benchmarking platform will give you access to current or forward-looking information (e.g. planned price changes), this should raise alarm bells. If it is limited to historical data, this is much safer.
• Frequency: How frequently will you receive information from the platform? If you will be receiving updates on an hourly, daily or even weekly basis, this may raise concerns with the ACCC, as this makes it easier for competitors to coordinate their prices. If the updates are less frequent, this will lower the risk.
• Accessibility: Consider who can gain access to the benchmarking platform. Information shared only among competitors is higher risk than information also made available to customers and the market at large.

Market characteristics

The following market characteristics are the primary drivers of whether information exchange is likely to produce anti-competitive effects:

• Concentration and number of competitors. In a market with a few significant players, information exchange can quickly enable each participant to predict what the others will do, reducing the competitive uncertainty that would otherwise drive them to compete on price or service. In a market with many competitors, the same information is far less likely to facilitate coordination because it is much harder for a large number of firms to align their behaviour.
• Barriers to entry. If new competitors can readily enter the market, any attempt at coordination is likely to be undermined by new entrants competing aggressively on price. Conversely, in markets with high barriers to entry (such as significant capital requirements, regulatory licensing or established network effects), incumbents exchanging information face less competitive discipline from potential new entrants.
• Product homogeneity. Information exchange is more likely to facilitate coordination in markets where products are relatively similar (e.g. commodity markets, fuel, basic financial products). Where products are highly differentiated with significant variation in features, quality, branding or customer experience, it is harder for competitors to simply "match" one another's strategies, even if they have access to each other's data.
• Demand stability and predictability. In markets with stable, predictable demand (e.g. utilities, essential goods), coordination is easier to sustain because deviating from a coordinated outcome is less attractive. In volatile or rapidly evolving markets (e.g. technology, fashion), coordination is harder to maintain because market conditions change too quickly for competitors to reliably align their behaviour.
• Transparency to customers. In markets where pricing is already highly transparent to customers (e.g. publicly listed retail prices), additional information exchange among competitors adds less to the risk, because much of the competitive intelligence is already available. In opaque markets, where prices are negotiated individually or not publicly disclosed (e.g. many B2B services, commercial real estate), information exchange between competitors is far more likely to reduce competitive uncertainty materially.

Where does enforcement stand? 

Since the concerted practices prohibition commenced in November 2017, no Australian court has found a contravention of the prohibition. So there is no judicial guidance yet on how the SLC test applies to information exchanges specifically. But businesses should not take comfort from this. ACCC Chair Gina Cass-Gottlieb recently commented on the settlement between the United States Department of Justice (DoJ) and RealPage, a property management platform for residential landlords (RealPage), in an interview with the Sydney Morning Herald,^[4] suggesting that the ACCC is taking an interest in benchmarking platforms and may be looking for an appropriate case to test the issues in court.

According to the DoJ complaint, RealPage violated US competition law by sharing forward-looking, granular information on effective rents, rent discounts, occupancy rates, availability, lease dates, lease terms, unit amenities and unit layouts between its users, who were competitors in the market for supply of residential real estate.^[5]

There have been other recent examples of overseas enforcement, such as the US DoJ’s May 2026 settlement with Agri Stats, a data sharing service for meat processors (Agri Stats). 

Three key points emerge from these cases:

1. The problem is not the platform, it's the inputs. In both RealPage and Agri Stats, the regulators permitted the platforms to continue operating, but required them to stop using non-public, competitively sensitive data.
2. Regulators have identified practical safeguards that can reduce risk. The Agri Stats settlement provides a useful template: time delays on shared data (at least 45 days, and 90 days for production-related decisions); aggregation to prevent firm-level identification; and making information available to both sides of the market, not just competitors. These safeguards closely mirror the risk factors in the ACCC's own guidelines.
3. Just because data on a benchmarking platform has been anonymised and aggregated, does not necessarily mean there is no competition law risk. In AgriStats, the DoJ alleged that those receiving the reports could still identify who submitted the non-public data even though it was anonymised and aggregated, allowing participants to raise prices. 

What should your business do?

To avoid becoming the ACCC’s test case, businesses using data benchmarking platforms should keep the following in mind:

• Competition law requires that businesses make their commercial decisions independently. In particular, pricing decisions must be independently made. Whenever you interact with competitors — including through a data benchmarking platform — it is especially important to be mindful of this principle to ensure you don’t inadvertently coordinate with competitors.
• If you are considering signing up to an industry database, ask about the types of information you will receive. If you will receive granular information (such as data sets organised by a small geographic area) or if the information will still be current when you receive it, this should raise alarm bells. Get competition law advice before proceeding.
• If your business wants to use a data platform that delivers genuine efficiency benefits but may raise competition concerns, consider seeking authorisation from the ACCC.