One section of ASX (JEC Data Services) supplied wholesale electronic information to Pont Data.  Another section provided an information service that competed with Pont Data (known as JECNET).  JECNET was not operating profitably; Pont Data was. ASX forced Pont Data to sign a new agreement for the wholesale data which imposed restrictions on the use of the data, increased the price and required provision of customer information.

When assessing whether provisions do or would substantially lessen competition, it is not the position of particular competitors that is looked at but rather ‘the state or condition constituting the market or markets in question, actually and potentially’.   Whilst actual competition must exist, ‘a market can exist if there be a potential for close competition even though none in fact exists or dealings in it are temporarily dormant or suspended’.  This was relevant in this case.

The term ‘substantial’ is to be used ‘in a relative sense, the notion of competition importing relativity.’

In relation to the information market in this case, the court noted there were a number of companies in competition with JECNET and Pont Data and that they were ‘highly professional and efficient’, many backed by or associated with large commercial organisations that assisted to stimulate competition.

Nevertheless, the Court considered the form of the agreement in this case – particularly those requiring customer information to be passed on to ASX and the prohibition on wholesaling, would be likely to have the effect of substantially lessening competition in the information market:

‘In that regard, wholesaling activities, actual or potential, are to be seen as an important feature or element in the information market as understood in this case.’

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