I spent time this week with one of the leading competition law barristers in the UK to explore whether Rightmove is unfairly increasing prices to its customers.

First we looked at whether we could refer Rightmove to the Competition and Markets Authority.

Is Rightmove in a dominant market position? Yes, in my barrister’s opinion.

Rightmove is No.1 and has a greater than 40% market share.

An investigation by the forerunner of the CMA, The Office of Fair Trading, in 2012 approved the merger of DPG and Zoopla and concluded that it was in the interests of consumers because the combined business would stand up to Rightmove.

At that time Rightmove had between 45-55% market share, with 47% of visits and 75% of page views. I doubt it’s shrank back since.

Secondly, is Rightmove taking action to exclude competitors from entering the market, or is it achieving rewards that it could not ordinarily expect to achieve in an ordinarily competitive market?

On the first charge, no. In fact a significant competitor, On The Market, has set up in recent years.

Whether its rewards are too high turns on the value of the leads Rightmove is generating for your business.

The case of At The Races vs British Horseracing Board was settled at the Court of Appeal. The case involved the price of data, so there are obvious parallels: Rightmove leads are data.

The High Court determined that data should be sold at its cost price plus a reasonable mark up. The Court of Appeal disagreed and said that data was worth whatever the party seeking to acquire it would pay. So Rightmove can charge prices for its data which reflect the value of that data to your business.

The CMA is not obliged to investigate all complaints made to it. It has principles which it applies to decide which cases are worth investigating.

For every £1 it spends on an investigation it has to show that there would be £10 of economic benefit to the UK.

The CMA is currently particularly interested in how a first-mover advantage online can translate into an entrenched dominant position. I don’t think that applies to Rightmove, which is long established.

To get the CMA interested in Rightmove someone would need to fund an Economic Assessment by one of the recognised economic consultants which service the competition industry.

They would gather data from agents to build a case and they would ask Rightmove for data to complete the assessment. Rightmove would not be forced to provide the data, but the consultant would explain to the CMA what data is missing, and if the CMA was minded then it could demand Rightmove hand it over to the CMA.

The cost of an Economic Assessment is circa £50k plus solicitor and barrister costs to prepare and review the case for submission. Let’s call it £100k all in.

The CMA would take between 12 to 18 months to reach a conclusion.

It could tell Rightmove to stop infringing competition law and it could fine Rightmove. An infringement would open the possibility of a separate action by Rightmove customers in the courts to claim damages.

However, the most likely outcome is that Rightmove would at some point in the investigation enter into a settlement agreement with the CMA to take action to stop infringing.

Our barrister then turned to the second option which gets regular airplay in the industry, collective bargaining by agents.

I have stated on EYE before, that it is not correct for individual businesses to exchange confidential information about their “cost inputs” i.e what they pay for Rightmove.

Our barrister confirmed that this exchanging of information is competitor collusion and is potentially illegal. Rightmove might perfectly reasonably reach out to its lawyers.

I’m also told that the standard Rightmove contract does not say that their price information is confidential, but we recognise porn without being told its porn, and confidential commercial information is recognisably what it is, confidential.

My barrister confirmed that organising a collective boycott of Rightmove is potentially illegal under competition law. Individual business owners will have to make their own minds up about the value of the data which Rightmove provides.

At The Property Franchise Group, our franchise structure means that we can collectively bargain with Rightmove, and where the data supports the decision we will continue to advertise.

Where it does not, we will use other channels.

* Ian Wilson is chief executive of The Property Franchise Group which had earlier sought to refer Rightmove’s price hikes to the CMA. EYE has asked Rightmove to comment on its price hikes, including an invitation to submit a bylined article, and we do hope to carry this.