Antitrust-by-Design: Competition Compliance in Digital Markets

Digital markets have given rise to additional sources of antitrust risk, including product architecture, platform governance, and data-driven design choices, alongside traditional concerns such as cartel conduct, bid rigging, and exchanges of competitively sensitive information. This article proposes an antitrust-by-design approach to competition compliance as a strategic response to the increasing convergence between competition enforcement, digital regulation and product governance.

Competition compliance in digital markets has become a strategic business variable – not merely a reflection of corporate best practices. It must therefore be embedded from the outset in product design, terms of service, and data governance frameworks.

Keeping pace with global enforcement trends, Brazil’s competition agency (“CADE”) has intensified scrutiny of unilateral and coordinated conduct in digital markets, opening at least 18 investigations since 2020, with CADE’s Tribunal assuming jurisdiction over selected cases, and entering into at least six Cease and Desist Agreements (“TCCs”)[2]. On the legislative front, Bill No. 4,675/2025 (“2025 Bill”), which is advancing on an expedited basis, was introduced in response to concerns that traditional antitrust tools are insufficient to tackle certain competition risks inherent to digital markets. The 2025 Bill proposes imposing specific obligations on systemic relevant players (gatekeepers) and creating a Digital Markets Superintendency within CADE, further expanding the agency’s role within the digital economy.

Despite this evolving landscape, many digital companies’ compliance programs remain anchored in “traditional” antitrust risk prevention measures, such as code of conduct and training focused solely on cartels, bid rigging, and exchanges of competitively sensitive information. While these tools remain important, they are insufficient to capture newer sources of risk that are characteristic of digital markets – particularly those arising from how products, data, and contractual relationships are structured.

I. Design as a Vector of Risk

In digital markets, CADE has broadened its enforcement focus to ecosystem design, platform governance and privacy rules, data use, and product architecture as potential vectors of competitive harm. Recent cases signal concern over practices that, while not necessarily resulting in the outright exclusion of players, may produce equivalent effects through access restrictions, self-preferencing, contractual conditioning, and incentive design. This shift brings the Brazilian experience closer to international debates on digital platforms, demonstrating that antitrust risk may be embedded in the very functioning of products, services, and business models, not only in traditional exclusionary conduct.

 Against this backdrop, platform design choices, including access rules, default settings, ranking, interoperability, product integration, data flows, anti-steering rules, contractual incentives, and algorithmic tools, have come to the fore as potential mechanisms for market foreclosure.

 On the regulatory side, the 2025 Bill reinforces this agenda by proposing obligations for both companies and corporate groups designated as gatekeepers, including requirements related to transparency in terms of service and pricing structures, interoperability, data portability, and prohibitions on practices such as self-preferencing, tying, and access restrictions. If enacted, business model and commercial practice reviews will need to be conducted on an ex-ante basis by companies designated–or at risk of being designated–as gatekeepers, rather than as a response to case-by-case enforcement by CADE.

 II. Antitrust-by-Design

The evolving enforcement landscape, combined with potential ex-ante regulation, underscores the importance of incorporating the practices described above into the compliance risk matrix of companies operating in digital markets.

 A. Unilateral Conduct

 CADE assesses unilateral conduct – such as exclusivity arrangements, self-preferencing, and discriminatory treatment – under a rule of reason framework, an effects-based standard. Hence, such practices alone do not automatically constitute an antitrust violation. To determine whether a given practice is anticompetitive, CADE typically examines the relevant market, existence of market power or dominance, potential anticompetitive effects, and any countervailing economic efficiencies.

 In this context, compliance and legal professionals, as well as UI/UX, product, advertising, privacy, and ecosystem managers at digital companies will increasingly need to develop familiarity with core competition law concepts – such as relevant market, dominance, and market power – which may become the subject of targeted training. For companies holding significant market share that frequently launch products or update their terms of service, it may also be advisable to establish a dedicated internal committee for competition risk assessment and strategic decision support, such as an advisory committee.

 Once markets in which the company holds market power have been identified, competition risks should be assessed from the earliest stages of product and service design, as well as during the drafting and updating of terms of service and data policies. This may include evaluating whether: (i) products favor the company’s own services or reduces rivals’ visibility (self-preferencing); (ii) tying, bundling, or pre-installation mandates are present; (iii) there are explicit or design-based retaliatory mechanisms against business partners that use competing products or services; (iv) third-party data is being used to compete against those very third parties; and (v) exclusivity, parity, or Most Favored Nation (“MFN”) clauses are adopted and, if so, what is their scope and commercial significance.

 Companies should also document the pro-competitive rationale for design choices that may affect rivals, including security, privacy, fraud prevention, product quality, and user experience. Where a practice is reviewed under an effects-based framework, documenting efficiencies, economic justifications, and the absence of equally effective, less restrictive alternatives to achieve those objectives may prove critical.

 In addition to the assessment above, companies should consider conducting periodic audits of existing contractual relationships. Forensic technology tools can help streamline this process, including through AI-assisted contract auditing to flag potentially anticompetitive provisions.

 B. Coordinated Conduct

 Coordinated conduct in the digital markets also warrants updates to compliance programs. With the exception of cartel conduct – which CADE treats as a per se infringement (i.e., without the need for effects analyses) – other forms of coordination, such as exchanges of competitively sensitive information or even parallel pricing, absent evidence of an explicit agreement, are assessed under the rule of reason or give rise to a rebuttable presumption of illegality.

 In the digital context, technological mechanisms can amplify these risks. Algorithmic pricing tools, for instance, have become the subject of significant academic debate and government investigations, given their potential to facilitate price-fixing, hub-and-spoke arrangements, parallel conduct, or the exchange of sensitive information among competitors. This represents a risk for both algorithmic solutions developers and companies deploying them.

 From a platform governance perspective, companies should carefully assess how competitively sensitive information is collected, segregated, processed and shared. Relevant considerations include what categories of data are made available to customers, how such information is displayed, whether each client operates within a siloed environment and whether client data may be used to develop products or services offered to other customers or to train the underlying algorithmic systems.

 Antitrust-by-design requires companies to move competition compliance upstream. In digital markets, competition compliance cannot be limited to preventing traditional cartel conduct, bid rigging, and exchange of competitively sensitive information. It must also inform the design of products, data systems, default settings, ranking mechanisms, incentive structures, and algorithmic tools. As CADE’s enforcement agenda and Brazil’s regulatory debate continue to evolve, companies operating in digital markets in Brazil should treat competition compliance as part of product governance, not as a separate, downstream control.

Digital markets are reshaping the competition law landscape. As regulators increasingly scrutinize platform governance, product architecture, algorithmic tools, and data practices, antitrust compliance can no longer be treated as a purely legal or reactive function. Instead, companies must integrate competition considerations into product development, commercial strategies, and data governance from day one.

Our latest article explores the concept of “Antitrust-by-Design,” arguing that effective compliance in digital markets requires a proactive approach that identifies and mitigates competition risks at the design stage. With CADE intensifying enforcement in digital markets and Brazil advancing discussions on ex-ante regulation for gatekeepers, businesses should view competition compliance as an essential component of product governance and long-term growth.

By Marcos Drummond Malvar, Gabriela Forsman & Luciana Mendes

Article originally published in Competition Policy International's