La protection des algorithmes par le secret des affaires. Entre risques de faux négatifs et risques de faux positifs

As the protection of algorithms by intellectual property laws is imperfect, the dominant companies in the digital economy rely mainly on trade secrets to ensure the integrity of their essential assets. Not only are algorithms a crucial factor of their competitive advantage, but their transparency could allow third parties to strategically distort their results in a negative direction for the dominant platform. Such necessary opacity, however, can also lead the dominant platform themselves to strategically manipulate algorithms as a basis for exclusionary or exploitative abuses. Trade secrecy could evolve from a necessity to a source of litigation risk for the dominant company. Indeed, how can a competition law judge separate efficiency-based defence from anti-competitive practices? After first presenting some economic elements of trade secrecy, we then turn our attention in the second part to an illustration and analysis of this competitive risk for dominant online platforms.