India: Nurturing Competition in a Rapidly Evolving Digital Space

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Developments in Indian competition law and digital markets

Introduction

As competition regulators worldwide enhance their scrutiny and regulation of major technology players, the Competition Commission of India (CCI) is calibrating its approach to the needs of the emerging digital economy in India. The cost of error is high: a 2023 report by the Indian National Association of Software and Service Companies reported that India is currently the third largest host for tech start-ups globally (after the United States and China), with over 27,000 active tech start-ups, of which over 1,300 were introduced in 2022 alone.[2]

Antitrust regulators globally are grappling with the pace at which enterprises innovate and compete. In India, the CCI has been entrusted with the responsibility of fostering competition and enabling market correction without hampering innovation and growth. Over the past few years, it has assessed transactions and antitrust issues across various digital economy segments, including digital payments, travel booking platforms and digital advertising, examining the real degree of contestability in each instance.

The Indian government has recently amended the 14-year-old Indian Competition Act, 2002 to make it consistent with international best practices and address emerging digital market issues. The Indian government is also contemplating an ex ante regulatory framework potentially modelled on the European Commission’s Digital Markets Act (DMA), to apply to ‘systemically important digital intermediaries’ (SIDIs), in addition to the existing competition law regime in India.

We highlight below the recent key developments of competition law in digital markets, in light of the evolving digital economy landscape of India.

The CCI’s assessment of competition in digital markets

Mergers

In 2020, the CCI approved Facebook’s acquisition of a 9.99 per cent shareholding in Jio Platforms Limited (Jio), a competing telecommunications provider, after noting that although the parties had strong incentives to share complementary user data, any anticompetitive conduct resulting from such data sharing could be taken up as an antitrust concern at a later stage (Facebook/Jio).[3] Later that year, the CCI approved Google’s investment in Jio, wherein it had acquired a 7.73 per cent shareholding, board representation and certain other affirmative and information rights. In line with its approach in Facebook/Jio, the CCI noted that any anti-competitive conduct resulting from the transaction could be addressed at a later stage, regardless of the CCI’s approval of the same (Google/Jio).[4]

In 2022, the CCI approved Google’s acquisition of a 1.28 per cent shareholding in Bharti Airtel Limited, a major telecommunications provider and competitor of Jio (Google/Airtel).[5] In its review of the transaction, the CCI was faced with an emerging concern in digital markets: the extent to which user data constitutes the competitively sensitive information (CSI) of the entity holding it.

The CCI expressed concerns that the information rights Google would gain in Airtel, coupled with its existing investment in Jio, may facilitate the flow of CSI between the two. It ultimately approved the transaction after Google committed to imposing a firewall that would prevent CSI from being shared with Jio and confirmed expressly that an agreement between Google and Airtel did not envisage sharing customer or user-specific data by either party. The CCI’s order in Google/Airtel marks a shift from its prior approach of treating user data sharing as a purely ex post concern.

The CCI also evaluated potential antitrust concerns in approving Amazon Asia-Pacific Resources Private Limited’s acquisition of a 76 per cent shareholding in Prione Business Services Private Limited, the parent entity of Cloudtail India Private Limited (Amazon/Cloudtail).[6] Amazon previously held 24 per cent of the equity shareholding in Prione (and thus Cloudtail), which was engaged in retail sales online and wholesale sales through both online and offline channels. In parallel, an inquiry had been initiated into Amazon for allegations including preferential treatment for certain allegedly affiliated sellers.[7] Predicated on this ongoing investigation, a third-party trade association filed an application seeking for the transaction to be blocked as it would worsen the alleged preferential treatment that Cloudtail would receive, to the detriment of other sellers on Amazon’s platform.

Instead of refusing to consider potential antitrust harm at the outset, the CCI noted Amazon’s submission that Cloudtail would be ceasing its online operations to comply with foreign investment regulations, finding that the issue of alleged preference did not affect the assessment of the transaction and, accordingly, did not warrant a remedy.

In 2022, the CCI approved the proposed acquisition by PayU Payments Private Limited of IndiaIdeas.com Limited, making it the first ever instance of the CCI approving a transaction unconditionally after issuing a show-cause notice directing the parties to explain why the transaction should not be subject to an in-depth investigation in Phase II. This approval was indicative of the CCI’s sophisticated understanding of the digital payments sector, business-friendly outlook and commitment to evaluating each case on its own merits.

Enforcement

The CCI also examined the role that data plays in defining competitive conditions in digital markets. Big data is at the core of competition law issues in the digital economy, with its ability to create entry barriers and strengthen market power. Two broad themes have emerged: the CCI has recognised that data collection may be abusive of a dominant position in a consumer-facing context, while also recognising that refusing to disseminate user data may abuse a dominant position in a market-facing context.

In 2021, on its own motion, the CCI opened an investigation into updates to WhatsApp’s privacy policy,[8] noting, prima facie, that collecting expansive and disproportionate user data and imposing a take-it-or-leave-it construct that compels users to agree to share data with WhatsApp’s affiliate companies is an unfair term and thus an abuse of dominance with regard to users. The CCI also noted that a user’s loss of control over personal data is tantamount to a reduction in quality under antitrust law.

Meta challenged the CCI’s jurisdiction to examine the 2021 update before a constitutional bench of the Delhi High Court in 2022, arguing that it was already sub judice before the Supreme Court, which was examining whether the 2021 update violated the constitutional right to privacy. The Delhi High Court rejected the challenge, finding that the CCI and the Supreme Court were examining different questions and areas of contravention and that the CCI has primacy over competition issues, recognising that data is a non-price parameter of competition, and thereby refusing to interfere with the CCI’s ongoing investigation.[9]

However, in cases involving allegations of abuse of dominance and imposition of anticompetitive vertical restraints by a platform in relation to other stakeholders, the CCI focused on data accessibility rather than data privacy as a concern. In these cases, discussed below, the CCI appears to have predominantly treated consumer and usage data as market intelligence, an ingredient for stakeholders to improve either their offering or their bargaining position with regard to the platform.

For instance, the CCI recently fined Google 9.36 billion rupees (US$113.81 million)[10] for abusing its dominance in relation to the Play Store,[11] finding that, inter alia, by making the Google Play billing system (GPBS) mandatory for certain transactions, Google collects a significant volume and category of granular data of the app users, including personal and financial transaction information, which it found to be competitively significant. The CCI observed that by withholding the transaction data it collects from the GPBS, Google affects the app developers’ ability to improve their services and compete effectively in their respective domains, thereby abusing its dominant position. Google categorically asserted that it had a responsibility towards user data privacy, in response to which the CCI held that instead of refusing to disseminate user data by itself, Google could ensure privacy through contractual stipulations with third parties. In addition to the penalty, the CCI/Play Store order sets out nine behavioural directions, including allowing developers to use third-party billing services and communicate with users to promote other channels for purchase. The CCI’s order is currently pending on appeal before the appellate tribunal, the National Company Law Appellate Tribunal (NCLAT).

While the CCI’s penalty order in CCI/Play Store awaits appellate hearing, app developers began to allege that Google’s new user choice billing policy contravened the CCI’s order and sought for the CCI to initiate a non-compliance investigation against Google.

In parallel, apprehending removal from the Google Play Store for failing to comply with Google’s impugned new payments policy, app developers approached the High Court seeking interim protection from removal from the Play Store. By way of an order dated 3 August 2023, the High Court dismissed 14 of 16 suits, finding that the subject matter of the suits was subsumed by the CCI’s jurisdiction over the enforcement of its orders. The High Court’s order nips antitrust-adjacent litigation in the bud and reaffirms the primacy of the CCI’s mandate in investigating competitive harm. However, the order is currently pending appellate hearing before a larger bench of the High Court. The remaining two of 16 suits are being heard separately by a single judge bench of the High Court and are presently sub judice.

The CCI has since initiated an investigation into advertisement exchanges and revenue sharing by Google. After the European Commission opened an investigation into AdTech in June 2021, the CCI received a complaint from the Digital News Publishers Association alleging that Google was abusing its dominance in several markets, including the market for online search advertising, by refusing to disclose details of revenue earned off the websites and links of news publishers and using this information asymmetry to deny news publishers a fair share of digital advertising revenue.[12]

The CCI found, prima facie, that this constitutes an alleged abuse of dominance and directed the director general (DG) to investigate the allegations in January 2022. In February 2022, the CCI added a similar complaint by the Indian Newspaper Society to the DG’s ongoing investigation[13] but refused to add an incremental allegation that search results were displayed based on a predetermined algorithm instead of relevance, since it found that no material had been adduced to substantiate this allegation. Later in the year, the CCI added a third complaint by the News Broadcasters & Digital Association to the ongoing investigation,[14] which alleged incrementally that Google was also abusing its dominance through the operation of its advertisement buying tool, Google Ads/DV360, to favour its advertisement exchange.

The CCI also found Google to be abusing its dominance in India through its policies for the Android operating system by mandating the pre-installation of its suite of apps as a pre-condition to license its operating system and using its control over the Android OS and the Play Store to promote Google Chrome and YouTube. The CCI imposed a penalty of 13.38 billion rupees[15] (US$162.58 million). The CCI also imposed 11 behavioural directions on Google, including modifying its agreements with mobile phone manufacturers, revoking contractual provisions with mobile phone manufacturers providing for exclusivity for its search services and allowing third-party stores on the Play Store.

On appeal, the NCLAT affirmed the CCI’s order in part and reversed four of 11 directions, including the requirement to allow the unrestricted sideloading of apps and allowing third-party app stores to be listed on the Play Store. Significantly, the NCLAT’s order, for the first time, held that in assessing allegations of abuse of dominance, the CCI must demonstrate the effects of the abusive conduct. Both Google and the CCI appealed the NCLAT’s order, which is currently pending before the Supreme Court.

In another platform market, the CCI recently found that online travel aggregators MakeMyTrip, its subsidiary Goibibo (together, MMT-Go) and Oravel Stays Private Limited (Oyo) had abused their dominance by imposing broad price parity and most favoured nation obligations on listed hotels and chain hotels, which prevented them from offering better prices on either their own platforms or on the platforms of other aggregators, and by penalising non-compliance by delisting or misrepresenting the availability of rooms in erring hotel providers.[16] It noted, however, that narrow price parity obligations that applied only to hotel platforms and not other travel aggregators were permissible. The CCI fined MMT-Go 2.23 billion rupees (US$27.1 million)[17] and Oravel Stays Private Limited 1.68 billion rupees (US$20.41 million)[18] and imposed behavioural directions. MMT-Go was also found to have entered an anticompetitive vertical agreement with Oyo by agreeing to delist Oyo’s competitors from MMT-Go platforms, thereby denying them market access. The CCI’s order is pending hearing before the NCLAT.

While the CCI’s investigation was ongoing, Oyo’s delisted competitors, FabHotels and Treebo, filed separate applications before the CCI, seeking the interim relief of being relisted on MMT-Go platforms. The CCI granted interim relief using tools available at its disposal in a post facto framework to address perceived competition concerns in dynamic digital markets.

In the past two years, the CCI has also initiated various market studies. In 2022, the CCI published its market study on the cab aggregator market, which examines features of the cab and taxi aggregator industry, including pricing and information asymmetry for consumers and drivers. Based on the market study, the CCI has recommended that self-regulatory measures be introduced within the industry to address information asymmetry and transparency concerns and bring about uniformity. The CCI is also undertaking a market study on private equity investments and their impact on competition. The scope of this ongoing market study includes key issues surrounding common ownership that may have a significant bearing on information exchange in the digital age.

Legislative and policy developments

The Competition (Amendment) Bill, 2023, which seeks to amend the principal legislation governing competition law in India (i.e., the Competition Act) was passed by both houses of the Indian Parliament on 3 April 2023. It received presidential assent and was published in the Gazette of India as the Competition (Amendment) Act, 2023 (the Amendment Act), and certain provisions are in effect from 18 May 2023.

The amendment process was initiated with the Ministry of Corporate Affairs setting up the Competition Law Review Committee (CLRC) in October 2018 to recommend changes to India’s competition law regime, given the changing business environment, and to bring it in line with global best practices. In 2019, the CLRC submitted its recommendations, some of which were incorporated into the Amendment Act.

The Amendment Act is a mixed bag of changes, with certain laudatory amendments and certain amendments that require further detailing and clarifications in order to be business-friendly and provide greater certainty. Changes that potentially have an impact on the digital economy include the following:

  • Introduction of deal value thresholds (DVTs): The Amendment Act introduces a deal value-based transaction notifiability test whereby all transactions for which the consideration (including direct, indirect and deferred) exceeds 20 billion rupees ought to be notified to the CCI. This is coupled with a test of the target enterprise having ‘substantial business operations in India’ (SBOI). The CCI’s draft merger regulations, published on 5 September 2023 for stakeholder consultation, clarify the applicability of the DVTs to be computed for both digital economy players on global and Indian metrics (by virtue of the SBOI test being applied to a number of users, customers, subscribers, visitors or gross merchandise value) and traditional players on the basis of global and India turnover (based on the entire balance sheet with no nexus to relevant turnover). The introduction of the DVT and clarification on the applicability of SBOI will enhance the caseload of the already over-burdened CCI and need immediate resourcing to be able to ensure continuing efficiency and efficacy of mergers and acquisitions timelines.
  • Penalty based on global turnover: The Amendment Act provides that global turnover derived from all products and services would be considered for anticompetitive agreements and abuse of dominance cases. This negates a landmark judgment of the Indian Supreme Court (Excel Crop Care, 2017), which restricted the scope of penalty calculation to the relevant turnover accruing from the affected product or business of the parties. This amendment would result in disproportionate outcomes with an adverse impact on Indian conglomerates and global companies.
  • Hub-and-spoke cartel: The Amendment Act explicitly introduces hub-and-spoke cartels, which will now attract stringent penalties.
  • Introduction of settlement and commitment: The Amendment Act introduces provisions that enable parties to propose settlements and commitments for instances of abuse of dominance and anticompetitive agreements (other than cartels). This amendment is a welcome introduction as it will lead to faster disposal of cases, avoid protracted litigation and save management time and litigation costs for the industry and the regulator.
  • Change in merger control timelines: The Amendment Act reduces the timelines for the CCI to assess a transaction and form a prima facie view. The CCI now has 30 calendar days as opposed to the erstwhile 30 working days (excluding clock stops). The Amendment Act also reduces the timeline for deemed approval from 210 calendar days to 150 calendar days (including clock stops). While this is seemingly industry-friendly, the expedited approval timelines need to be coupled with a large-scale expansion of the CCI’s capacity to ensure that the regulator is not overburdened and that there is no impact on M&A timelines.

Revisiting the Competition Act in 14 years of its existence to make it consistent with international best practices and make it more industry-friendly is a laudable move by the Indian government. However, the devil will lie in the details, as a significant impact of the Amendment Act will depend on the regulations that will determine the success or stumbling blocks of the amendments.

Proposed ex ante framework: the Digital Competition Act

In a significant move, the government set up a committee to introduce a proposed Digital Competition Act to regulate digital players. In December 2022, the Parliamentary Standing Committee on Finance finalised its Fifty Third Report: Anti-Competitive Practices by Big Tech Companies after extensive consultations with government departments, industry stakeholders and the CCI.

The Report sets out various distinctive features of the digital economy that separate it from the traditional markets and as a result of which the digital economy creates a greater challenge for market regulators. The Report recognises that digital economies operate with economies of scale and scope, which amplify the impact of anticompetitive conduct and result in faster tipping of markets in favour of one player. The damage on accord of such anticompetitive conduct is also irreversible on account of network effects. Therefore, the Standing Committee recommended a new regulatory regime in addition to the existing Competition Act, which could ensure that digital markets retain their dynamic and contestable nature. Specifically, the Report recommended the introduction of an ex ante regime modelled after the European DMA or the United Kingdom’s Digital Markets, Competition and Consumer Bill that would apply to designated SIDIs, akin to gatekeepers, who would be subject to 10 broad categories of obligations in relation to, inter alia, reporting below-threshold transactions, consumer data harvesting and use, advertising policies and exclusive tie-ups.

The ex ante framework is a precautionary approach that may lead to disruption and innovation taking a backseat. This may be seen as a conservative or straightjacketed approach towards market regulation, and one that is contradictory to the nimble and dynamic approach that has been maintained by the CCI up to now. It also brings uncertainty that will reduce the ease of doing business in India and prevent the much-needed investments that are key to the growth of the Indian start-up economy. Legislation such as the DMA is currently untested and follows a one-size-fits-all approach by framing industry-agnostic obligations for certain companies that are designated as gatekeepers without considering the commercial and business realities. Such legislation may also significantly increase the cost of compliance, as has been noted in the European experience.

If the limited concern sought to be addressed by the Standing Committee was the pace of the negative impact of anticompetitive conduct in the digital economy, the existing provision of granting interim relief is sufficient and has been used effectively by the CCI. The CCI exercised its power to expediently correct apparent market harm by granting interim relief in the MMT-Go case, effectively intervening in a digital economy investigation without needing an ex ante framework.

Conclusion

Pending the move to introduce an untested ex ante framework in India, the CCI has also significantly enhanced its capacity and tools to deal with digital economy participants. The CCI set up a specialist digital markets and data unit (DMDU) in July 2023,[19] which aims to facilitate cross-divisional exchange and discussion on digital market issues; drive stakeholder engagement across academia, other industry regulators, international deliberations and government on digital market matters; support the CCI’s enforcement issues of digital markets; and lead market studies into matters relating to digital markets.

Although a welcome move, the DMDU’s location within the CCI’s current mandate needs enhancement in terms of adding domain experts such as statisticians, data scientists and technology experts to aid its functioning.

The need of the hour remains an evidence-based approach to ensure that over-regulation does not have an impact on innovation and investment in Indian markets. The CCI has done a commendable job ensuring that the existing ex post framework relies on evidence-based tools, as well as using interim measures in digital markets where warranted.


Notes

1 Nisha Kaur Uberoi is a partner, Harshita Parmar is counsel, and Akrathi Shetty and Shivangi Chawla are senior associates at Trilegal. We also acknowledge the contribution to this chapter of Pramothesh Mukherjee (associate) and Vasudha Verma (associate) in the Trilegal competition practice.

2 NASSCOM, Tech Start-up Report 2022-Rising Above Uncertainty: The 2022 Saga of Tech Start-ups, 15 February 2023 (accessible at https://community.nasscom.in/communities/nasscom-insights/nasscom-tech-start-report-2022-rising-above-uncertainty-2022-saga).

3 Combination Registration No. C-2020/06/747.

4 Combination Registration No. C-2020/09/775.

5 Combination Registration No. C-2022/03/913.

6 Combination Registration No. C-2021/12/893.

7 Case No. 40 of 2019.

8 Suo Moto Case No. 01 of 2021.

9 WhatsApp LLC v. Competition Commission of India, 2022 SCC OnLine Del 2582.

10 Penalty computed at 7 per cent of Google’s average relevant turnover in India.

11 Case No. 7 of 2020, Case No. 14 of 2021 and Case No. 35 of 2021.

12 Case No. 41 of 2021.

13 Case No. 10 of 2022.

14 Case No. 36 of 2022.

15 Penalty computed at 10 per cent of Google’s average relevant turnover in India.

16 Case No. 14 of 2019 and Case No. 1 of 2020.

17 Penalty computed at 5 per cent of their average relevant turnover in India.

18 Penalty computed at 5 per cent of their average relevant turnover in India.

19 60th Report of the Standing Committee on Finance, 27 July 2023.

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