How can you gather intelligence so you can benchmark lawfully?
Legal risks attach to the rewards of gathering intelligence.
Those risks arise from the potential negative impact on consumers that knowing too much about your competition can bring...
A little uncertainty/insecurity keeps business on the edge, keeps it trying hard, keeps it inventing, competing, offering the best of itself to leverage growth opportunities and generate increased customer loyalty. That's what competition law aims to protect.
On the other hand, too much transparency can destroy that incentivising uncertainty, resulting in commercial complacency, mediocrity, lack of customer focus and a stagnant market. That's what competition law aims to control.
What's the public? Stick to public resources and information that is not competitively sensitive. Trading supermarket shelves and looking at prices on online sites is fine. If you're in any doubt what is public or confidential, take a quick look at our guide: Confidentiality: are you keeping your IP and data safe?
Beware special access rights or favours:
Calling in favours to get access to materials that require passwords which have not been assigned especially to you may take you across the safety line. Likewise, ensure that anything you protect with a password is not legally undermined.
Take care when commissioning market researchers:
A better way to get what you need – or as near to it as you lawfully can get – is to consider the appointment of a reputable, independent third-party researcher who can undertake market intelligence research on your behalf. Whilst the reporting of this information by the researcher must be strictly managed and disclosure of individual competitor data should not be possible from the reporting format deployed, it is often the case that this approach will lawfully facilitate a broader assessment of market and competitive dynamics that could be achieved by a business not adopting this technique. (Make sure you have robust terms of engagement in place with any third-party researcher so the scope of the research exercise is clear. Be clear also as to the permissions you grant to the researcher to reveal anything about you that might be confidential).
Don't interrogate new recruits who come from a competitor
Not only you, but they individually, could get into trouble legally if the discussion you have concerns business secrets belonging to your rival. They may also be under legal obligations to their former employer not to divulge competitively sensitive information.
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