Guidelines on Access to Evidence Data Announced
The Korea Fair Trade Commission (KFTC) has released guidelines on the access to and use of evidence data prior to imposing sanctions on Google.
According to the current law, every KFTC investigation subject can access and copy the commission’s evidence data only with the consent of the submitter or only for public purposes. However, nothing is stipulated in the current law when it comes to related methods and procedures and the guidelines are to clarify this part.
The core concept of the guidelines is a limited data room where trade secrets can be protected. In other words, the KFTC will determine who, when, where and how to access trade secret data so that the access can be limited. It is similar to the concept the EU competition authorities adopted in order to protect data providers’ secrets and guarantee investigation subjects’ rights to defend themselves at the same time.
In the KFTC’s data room, the limited access will be provided for attorneys outside investigation subjects instead of the subjects. An outside attorney permitted to do so by the commission can access the space on a date determined by the lead investigator and stay there for up to two weeks. The attorney must write a pledge in advance to the effect that he or she will abide by the rules of use of the space and maintain confidentiality. The attorney can draw up a report based on the evidence he or she studied in the data room. However, no trade secret can be directly written in the report and the lead investigator must confirm the non-inclusion.
The guidelines come with a document template so that an investigation subject can more easily access and copy data undisclosed in an investigation report. In that template, an enterprise must provide information on itself and its accessor and case number along with what data is needed and why and how long it is needed. If the written information is insufficient, the KFTC can tell it to fix the information. The access can be blocked if it is not corrected within five days.
In addition, at the request of an enterprise, the KFTC must ask a data submitter if data disclosure to the enterprise is okay and why it is not otherwise. Then, the lead investigator will decide whether to permit the data access and duplication within 30 days from the request. The time limit can be extended by up to 10 days if necessary.
The duty of confidentiality is applied to both the outside attorney and the investigation subject. In the event of violation, the KFTC can ask the Korean Bar Association to take disciplinary action against the violator and any contact between the violator and a public KFTC employee is prohibited for five years.
The guidelines that allow access to corporate trade secrets have to do with the KORUS FTA. In the agreement, the United States consistently urged South Korea to guarantee access to evidence data in relation to competition law-related cases. Especially, Qualcomm, which had to face a fine of about one trillion won in South Korea, claimed that the KFTC did not fully guarantee its rights to defend itself in the course of their administrative litigation.
Under the circumstances, the commission reached a conclusion that the access should be permitted before further trade conflict. The KFTC is about to impose restrictions on Google with regard to market dominance abuse. The commission’s stance is that an investigation initiated after defensive rights are guaranteed can be procedurally more advantageous.
“A related bill was already tabled, and yet the bill cannot be implemented until May next year even if it is passed within this year,” the KFTC explained, adding that the administrative pre-announcement from Nov. 2 to 22 is to fill the interval and forestall problems that might arise from underpreparation. “There has been a lot of demand for data access and duplication with regard to non-Google cases as well and the limited permission has led to litigation and delayed procedures in many cases,” it went on to say, continuing, “The guidelines are expected to resolve this.”