1

Competition in Digital Markets: An Indian Perspective1

Sumit Jain*, Vikrant Singh**

Abstract

The paper identifies competition concerns in the digital markets from an Indian perspective.
Through the relevant research methodology, the authors have made an attempt to address the
question on the efficacy of the current legislative framework through the Indian Competition
Act as far as competition aspects of the data-driven markets are concerned. The authors con-
clude that the existing framework appears to be sufficient to the extent of identifying the anti-
competitive practices in digital markets such as bundling, tying, self-preferencing and cross-
utilisation of data among others. The limitation, however, exists in the timing of the interven-
tion. There is merit in amending the regulatory framework on an ex-ante basis where harmful
effects of such anti-competitive conduct are duly acknowledged. The paper also emphasises on
quantifying the harm caused by anticompetitive practices of Big Tech by the Competition Com-
mission of India which hitherto, has not been the practice. In order to quantify the damages,
the paper suggested to enhance the regulatory capacity of the Indian antitrust agency through
increased budgetary allocation.

1. Introduction

The Indian Competition Act was enacted in 2002 as a corollary to the country’s economic
liberalisation reform programme of 19912. The aim of the legislation was to fine-tune the legal
regime as per the economic requirements of the country and ensure that the policy framework
is favourable to global investments. The purpose of the law is also to ensure a level playing
field between various entities in the market and enhance the consumer welfare standard. Some
of the key changes which were introduced by the Competition Act, viz-a-viz its predecessor
the Monopolies Restrictive Trade Practices (MRTP) Act, 1969, were that dominance in itself

1
* Sumit Jain is a Director at the Centre for Competition Law and Economics (CCLE), New Delhi and an FPM
Scholar (Economics) at IMT, Ghaziabad;
**Vikrant Singh is a Director at the Centre for Competition Law and Economics (CCLE), New Delhi
2
Chauhan, B. S. (2012, September). INDIAN COMPETITION LAW: GLOBAL CONTEXT. Journal of the
Indian Law Institute, 54(3), 315-323
 2

was no longer considered bad, the Director General (DG) has to operate under the superintend-
ence of the Competition Commission of India (CCI) and the Indian competition body was given
extra-territorial jurisdiction to look into anti-competitive conduct happening outside the coun-
try but having an effect within. The new law is now in its fifteenth year of enforcement where
the CCI has looked into more than 1,000 cases and passed over 100 contravention orders.

2. Background

The Government of India in 2019, set up the Competition Law Review Committee (CLRC)
under the aegis of the Ministry of Corporate Affairs (MCA) to look into the enactment and
enforcement of competition law in India over the last ten years. The Committee after following
the due procedure submitted its report to the Ministry suggesting changes in the length and
breadth of the law. Some of the key changes as suggested by the CLRC included the introduc-
tion of a commitment and settlement scheme, the merger of the office of DG with the CCI, the
introduction of a ‘green channel’ for mergers and enhancing the financial autonomy of the
Commission. The Committee further recommended that the ‘leniency plus’ scheme should be
incorporated within the applicable amnesty framework to increase the detection of cartels. Most
importantly, regarding the competition in digital markets, the committee resolved that the Com-
petition Act, 2002 is sufficient in addressing the competition concerns in the market and there
is no requirement to further amend the law.

In 2022, the Parliamentary Standing Committee of Finance further emphasised on digital mar-
kets and came up with a report titled ‘Anti-competitive practices by the Big Tech3’. The Stand-
ing Committee as part of the report identified ten practices which ought to be considered anti-
competitive on an ex ante basis. These practices include anti-steering provisions, self-prefer-
encing, bundling and tying, cross-utilisation of data, killer acquisitions, deep discounting and
excessive pricing, exclusive tie-ups, search and ranking preferencing, restricting third-party
applications and advertising policies. Taking a contrary stand from the CLRC report, the stand-
ing committee held that the provision on the Competition Act, 2002 may not be sufficient to
address the anti-competitive conduct of the Big Tech and there is a need for separate legislation

3
Standing Committee on Finance, Ministry of Corporate Affairs; Report on ‘Anti-Competitive Practices by Big
Tech Companies’; December 2022
 3

which the committee termed as ‘Digital Competition Act’. In furtherance of the recommenda-
tions of the Standing Committee, the Indian government in 2023 formed another expert com-
mittee, the Committee of Digital Competition Law (CDCL) under the aegis of the MCA to
assess the requirement of a new law. The CDCL subsequently submitted its report after under-
taking research and stakeholder consultation in March 2024, and concurred with the Standing
Committee on the requirement of a new law. The CDCL has further made the draft law which
is termed the ‘Digital Competition Bill’4.

3. Research Questions

Based on the observations made by the CLRC and CDCL in their respective reports, the fol-
lowing research questions emerge which require a thorough enquiry:

1) What is the current jurisdictional approach of the CCI to deal with the cases arising out
of the anti-competitive conduct in the digital markets?
2) What is the economic theory of harm associated with anti-competitive conduct in digital
markets?
3) Are the provisions of the Indian Competition Act, 2002 sufficient to address competi-
tion concerns arising out of digital markets?
4) Is there a requirement for a separate law as suggested by the Standing Committee and
concurred by the CDCL to tackle the anti-competitive conduct of Big Tech?

4. Research Methodology

In order the address the aforementioned research questions, the authors have adopted the fol-
lowing research methodology:

1) The authors have conducted intensive legal research by going through all the orders
passed by the CCI taking the time duration from May 2009 to April 2024 against the 5
Big Tech popularly known as GAFAM i.e. Google, Amazon, Facebook (Meta), Apple
and Microsoft.

4
Ministry of Corporate Affairs; Report of the Committee on Digital Competition Law, Februrary 2024
 4

2) Based on the research, a factual matrix for each case is prepared for further evaluation.
3) A qualitative assessment of the reasoning adopted by the CCI in each order to reach
the final conclusion is done to determine whether the provisions of the Indian Compe-
tition Act, 2002 have been proven to be sufficient/ insufficient in addressing the anti-
competitive conduct as alleged in the matters.
4) An attempt is made to keep the assessment as objective as possible while drawing the
conclusion and findings of the paper. However, wherever the CCI has pronounced on a
principle-based framework or in the lack of sufficient factual/ information matrix, the
researchers have taken the liberty to conduct a subjective assessment of that order. Rel-
evant portions of the orders which have a bearing on the research questions are high-
lighted.

5. Data Collection

In the prescribed period, a total of 32 orders have been passed by the CCI in the interim, or in
the final stage including the minority orders. The orders have been arranged in chronological
order and facts of the case along with the reasoning taken by the Commission are stated for
each order.

5.1 Eximcorp India Pvt. Ltd. vs Google India Pvt. Ltd. (2011)5

The facts of the case were that the Informant (complainant) was a trading company engaged in
the business of wood products and was a consumer of the ‘AdWords’ business run by Google
Inc. in India. The Informant alleged that the search giant is violating competition law by keep-
ing the bidding process opaque and indulging in self-preferencing in the results shown on
Search Engine Result Pages (SERPs). The other allegations as put by the Informant included
the change of terms and conditions of the bidding process without prior notice and discrimina-
tion in the payment modus on the basis of the geographic location of the client. The CCI while
holding a case of non-contravention overlooked the first allegation, i.e. opacity in the bidding
process, and moved on to the second, i.e. the possibility of self-preferencing, but only addressed
it partially by saying that such results are ‘automated’ in the process.

5
Case No. 68 of 2010 at the CCI
 5

5.2 Singhania & Partners LLP vs. Microsoft Corporation Pvt. Ltd. (2011)6

The Informant was an Indian law firm which was required to purchase ‘Microsoft Operating
System’ and ‘Microsoft Office’. The Informant, though, initially placed an order of ‘Microsoft
Vista Business’ and ‘MS Office 2007’ at a cost of INR 4,00,000 (approx.) with one of the
dealers of Microsoft, it ultimately got cancelled due to an apparent reason of being the 'OEM
licence’ version. On subsequent inquiry, the Informant realised that Microsoft sold two types
of licences, i.e. ‘OEM licence’ and ‘volume licence’ where the latter is approximately double
the cost of the former despite offering the same functionality. While the ‘OEM licence’ is for
the new systems and the volume licence is for the existing systems, this aspect is not apparent
on the website of Microsoft from where purchases are made. The Informant alleged that the
respondent is dominant in the market and is indulging in overpricing by forcing the Informant
to purchase the ‘volume licence’. It further alleged that this amounted to discriminatory con-
duct as, even though both the licences offered similar functionality, one was double the cost of
the other. Last, but not least, the Informant alleged that the agreement signed between Mi-
crosoft and OEMs is in violation of competition law as the tech giant gives preferential treat-
ment to OEMs over other equipment manufacturers in terms of pricing. This might lead to the
ultimate exit of these other equipment manufacturers.

The CCI passed a divided order in the matter. The majority order while holding a case of non-
contravention held that there was a lack of evidence in the case. It further held that it is an
admitted position on record that different dealers are able to quote different prices thereby sug-
gesting competition in the market. The minority order, however, suggested that lack of in-
teroperability on the part of Microsoft with regards to desktop software package is something
which is of concern and may be in violation of competition law.

5.3 Sonam Sharma vs. Apple Inc. & Ors. (2013)7

The Informant alleged that Apple Inc. is violating competition law in relation to the operation
and distribution of one of its products, i.e. iPhone 3G/3GS. The Informant alleged that Apple
Inc. has signed a secret and exclusive agreement with Bharti Airtel and Vodafone when it
comes to its distribution in the Indian market and has further put various restrictive criteria in

6
Case No. 36 of 2010 at the CCI
7
Case No. 24 of 2011 at the CCI
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its technology which ensures that the consumer is locked in the Apple ecosystem. The Inform-
ant further alleged that any attempt by the consumer to ‘jailbreak’ these conditions would result
in the end of the warranty, deletion of data and refusal by the company to accept the phone to
repair at its authorised centres. The Commission conducted an assessment of the exclusive
distribution agreement and observed a case of non-contravention. It further said that the defi-
nition of ‘relevant market’ cannot be on the basis of ‘single brand’ and therefore, the applicable
RM in this would be ‘market for smartphones in India’. Since Apple is not a dominant player
in the given RM, the question of abuse of dominance doesn’t arise.

5.4 Mohit Manglani vs. Flipkart & Ors. (2015)8

The Informant alleged that Flipkart, Amazon and other e-commerce platforms are violating
competition law by trying to monopolise the supply and distribution of various products in the
market. The Informant alleged that these e-commerce platforms have entered into exclusive
contracts with various dealers and suppliers thereby leaving the consumer with no choice but
to buy from these platforms. The consumer had no option but to accept the various terms &
conditions as imposed by these platforms such as price, mode of payment, delivery schedule
and quality. For instance, the book ‘Half Girlfriend’ was exclusively available on Flipkart and
the e-commerce company started publicising about it before it was even released. In the ab-
sence of any other option, the consumers had to accept all the terms dictated by the company
amplifying the consumer harm prohibited under the law. The Commission here found a case
of non-contravention and suggested that an arrangement, even if it is exclusive in nature, be-
tween a manufacturer and an e-portal may not create any entry barriers for other players in the
market.

5.5 Taj Pharmaceuticals Ltd. & Ors vs Facebook & Ors. (2015)9

The Informant was a company incorporated in India engaged in the production of allopathic
medicines. The Informant had purchased a piece of land from two individuals namely Arjun
Ramnath Chari and Banwari Ramnath Chari for a price of INR 42 lacs in Mumbai between

8
Case No. 80 of 2014 at the CCI
9
Case No. 80 of 2014 at the CCI
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2004-06, however, the deal went into dispute due to sellers coming up with additional condi-
tions such as increased rent and eviction of the property, not initially mentioned in the sale
agreement. The Informant alleged that notwithstanding the facts of the original land dispute,
Facebook and Google being the largest social media and search engine companies respectively,
carried defamatory content against it which is in violation of competition law. The Informant
had filed a claim of INR 100 crore at the CCI as a remedy to the alleged defamation. Even
though Google and Facebook were marked opposite parties and it was alleged that both the
companies have monopolistic power in their respective relevant markets, the main allegation
did not pertain to market distortion and restricting competition. As such, the Commission
passed an order on merits which was deemed fit in the factual circumstances of the case.

5.6 Vinod Kumar Gupta vs. Whatsapp Inc. (2017)10

The Informant was a Chartered Accountant acting on behalf of an NGO known as Fight for
Transparent Society. The Informant in this case alleged that WhatsApp Inc. has been acquired
by Facebook Inc. and the company is engaging in cross-utilisation of data under dubious data
collection and usage policies. The Informant further alleged that WhatsApp has an above 55%
market share in the ‘relevant market’ of ‘free messaging apps on smartphones’ thereby making
it a dominant enterprise under competition law. The Informant further alleged that WhatsApp
is engaging in predatory pricing by offering its services for free and its data sharing policy
allowing cross-utilisation of data is in violation of competition law. The Commission here ob-
served a case of non-contravention and held that there are multiple competitors available in the
market such as Hike and WeChat. The CCI further said that there are no switching costs appli-
cable to hindering the movement of consumers from one app to the other.

5.7 Matrimony.com & Anr. Vs. Google (2018)11

The Informant, i.e. matrimony.com, was an Indian company providing internet platform ser-
vices for prospective marriage alliances. The company was joined by the Consumer Union
Trust Society (CUTS) in filing the case, which was an NGO working on various public interest
issues including consumer and competition matters. The Informants alleged that Google runs

10
Case No. 83 of 2015 at the CCI
11
Case No. 07 and 30 of 2012 at the CCI
 8

its core business of search and advertising in a discriminatory manner, causing harm to adver-
tisers and indirectly to consumers. It was alleged that the company is a dominant enterprise in
the search engine market and it creates an uneven playing field by engaging in self-preferencing
by favouring its own services and partners placed in a vertical manner. The Informants further
suggested that various impugned algorithms and programming codes used by the company
could only be brought to light through a direction passed by the competition body.

The CCI developed a detailed order on merits looking into various nuances of digital markets.
The Commission did find a case of contravention here. Some of the key areas where the Com-
mission focused while conducting a competition assessment included the possibility of search
bias in Google SERPs, terms & conditions between Google and various advertisers, distribu-
tion agreements as made applicable to its partners by Google and terms and conditions on
which Google provides its intermediation services to various players in the market. While the
DG in this case found a case of contravention in more than five instances, the minority (dissent)
order could not agree even on a single instance of abuse. The majority order, though, agreed
on three occasions namely fixation of certain entries (1 st, 4th and 10th) when it comes to dis-
playing SERPs, self-preferencing by Google for its own products on SERPs and imposition of
restrictive conditions on publishers through intermediation agreement and held them in viola-
tion of competition law.

5.8 Vishal Gupta & Anr. Vs. Google (2018)12

The Informant in this case was managing the Shyam Garment group of companies along with
his family members and associates. The Informant was joined by Albion InfoTel Limited in
filing this case which was a private limited company in India providing IT solutions. The In-
formants in this case alleged that the bidding process as followed by Google for its ‘Adwords’
business is marred with opacity and may be in violation of competition law. They further al-
leged that the user safety policy of Google is also extremely vague thereby further resulting in
competition concerns. It was further alleged that Google has created trade barriers to give pref-
erential treatment to its own competing companies which may be in violation of the law.

This case was more adversarial in nature where it was found out that one of the Informants had
violated the stipulated terms & conditions of the agreement over 1,000 times while providing

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Case No. 06 and 46 of 2014 at the CCI
 9

Remote Technical Support (RTS) services. As such, the Commission weighed the arguments
made by both parties and found a case of non-contravention. The CCI further said that the
agreement granting unilateral rights to Google to modify and edit the agreement is ‘ubiquitous’
across the industry and it is not ‘practical’ to negotiate the same wherever millions of users are
involved. The minority (dissent) order further raised a question on the timeline of events as all
such RTS accounts were terminated just a day before Google launched its own product, i.e.
Google Helpouts, which was in apparent competition to RTS.

5.9 Delhi Vyapar Mahasangh vs. Flipkart & Anr. (2020)13

The Informant in this case was an NGO whose membership primarily consisted of micro, small
and medium enterprises (MSMEs) in India. The Informant has alleged that its members have
been using Flipkart and Amazon for availing online distribution channels and both the e-com-
merce companies have entered into preferential agreements with certain sellers to the detriment
of non-preferred sellers. These preferred sellers are ultimately controlled by Flipkart and Am-
azon resulting in competition concerns. The Informant’s ongoing allegations include both the
e-commerce companies indulging in a host of practices such as deep discounting, preferential
treatment and private labels which ultimately result in consumer harm and reducing competi-
tion in the market. The Informant has also alleged that the two companies have a competitive
advantage over others due to the access to data and pronounced network effects. The Commis-
sion has held a prima facie case of contravention in this order and ordered a detailed DG in-
vestigation. The CCI has acknowledged the growing presence of the e-commerce market in the
economy and the subsequent dependence of sellers on a couple of platforms.

5.10 Harshita Chawla vs. Whatsapp (2020)14

In this particular case, the Informant was a practising advocate involved in extensive research.
The Informant alleged that the Facebook-backed-WhatsApp is indulging in anti-competitive
conduct by trying to bundle its messaging services with payment services to enter the Unified
Payment Interface (UPI) market. The Informant alleged that it is trying to use its vast user base
in the messaging market to propel its growth in the UPI segment. The Informant further alleged
that UPI ecosystem lies at the core of the national policy-making system and the dominant

13
Case No. 40 of 2019 at the CCI
14
Case No. 15 of 2020 at the CCI
 10

presence of a foreign entity like WhatsApp might not be in the best interests of consumers and
competitors. The Informant further alleged that recent acquisitions made by Facebook clearly
reflect its competitive edge when it comes to accessing data thereby resulting in competition
concerns. The Commission, though, was cognisant of the prevailing factors as applicable in
digital markets while determining the dominance of WhatsApp in the relevant market, it shifted
to usage/ transaction standards as far as establishing a case of abuse to hold a case of non-
contravention.

5.11 Lifestyle Equities C.V. and Anr. Vs. Amazon Seller Services Private Limited and Ors. (2020)15

The Informants were registered business entities in the Netherlands which owned and distrib-
uted the brand name of Beverly Hills Polo Club (BHPC) across the world. The Informants
alleged that Amazon and its associated enterprises have formed an agreement which not only
harms BHPC’s business operations in India but affects the overall competition dynamics. The
Informants further alleged that its products are either available on its own website or through
brick-and-mortar mode, however, Amazon is engaging in counterfeiting by making Inform-
ants’ products available on its website. It was alleged that Amazon is dominant in the relevant
market of ‘online fashion retail in India’ and it is engaging in anti-competitive conduct such as
deep discounting, predatory pricing, exclusive tie-ups and preferential ranking for its own prod-
ucts on the website. The Informant further alleged that such sale of counterfeited products by
Amazon has resulted in reputational loss which has given an advantage to its immediate com-
petitors such as the US Polo Association who are selling their products through Amazon’s
platform. The matter was more adversarial in nature. The Commission weighed in the argu-
ments made by both the parties and passed a case on non-contravention on merits.

5.12 Baglekar Akash Kumar Vs. Google & Anr. (2021)16

The facts of the case were that the Informant was a law student in India. The Informant alleged
that Google’s business model is based on the interaction between the online products and ser-
vices it offers free of charge to users on one hand, and its online advertising services, from
which it derives the majority of its revenue, on the other hand. The Informant alleged that

15
Case No. 09 of 2020 at the CCI
16
Case No. 39 of 2020 at the CCI
 11

Google is a dominant entity in internet-related services and post COVID-19, when most of the
business transferred online, it violated competition law by integrating the Google Meet app
with Google Mail. The Informant alleged that the company has used its dominance in one rel-
evant market, i.e. internet services to enter another relevant market (‘video sharing services’).
The Commission pronounced that consumers could use meet services without a Google ac-
count and there is no coercion on the part of the company to use meet services when integrated
with mail services. In such a case, it held non-contravention on the specific allegation.

5.13 WhatsApp Privacy Policy case (2021)17

The facts of the case are that WhatsApp updated its privacy policy in 2021. As per the new
policy, the users are mandated to accept the terms & conditions as dictated by the company to
keep availing of its services. The users kept on getting notifications about the update in the
policy so as to give their acceptance. The CCI has opened a suo moto investigation against the
company for prima facie violation of competition law. The Commission appreciated the eco-
nomics of data and looked into the business model of the company while passing the order.

5.14 Kshitiz Arya and Anr. Vs Google & Ors. (2021)

In this case the Informants are two individual consumers of the Android-based smartphones
and smart television devices. The Informants have alleged that Google has signed various re-
strictive agreements with Original Equipment Manufacturers (OEMs) which ensures that the
dominance of the Android ecosystem is maintained to the detriment of competitors and con-
sumers which may be in violation of competition law. It is further alleged that the company is
engaging in bundling where it puts strategic barriers to entry by preinstalling its app store (‘Play
Store’) on Android TVs and other electronic devices. The Informants alleged that such conduct
is prohibiting various competitors of Google to enter the market and provide their services. The
Commission has held a prima facie case of contravention against the company directing a de-
tailed investigation. The Commission emphasised the importance of network effects and also
highlighted the effect of pre-installation, as a concept, on competition. The matter involved

17
Suo moto Case No. 01 of 2021 at the CCI
 12

allegations related to bundling and tying on which the Commission has stated that a detailed
examination is required.

5.15 Together We Fight Society Vs. Apple Inc. & Another (2021)18

The Informant in this second case against Apple Inc. alleged that Apple is a global tech com-
pany which uses a series of anti-competitive restraints on the consumers and app-makers to
control the Apple ecosystem. Some of the key allegations as levelled by the Informant include
the determination of App Store review guidelines in a unilateral manner (‘take it or leave it’),
charging an excessive commission of 30% on in-app purchases (IAP), mandatory usage of
IAPs putting a constraint on the consumer choice and tying the App store to in-app purchase
in the iOS in-app payment processing market. The Informant has alleged that all such practices
are abusive in nature and in violation of Indian competition law. The Commission has held a
prima facie case of contravention against the company directing a detailed investigation. The
Commission looked into the Apple ecosystem while passing the order and focused on the eco-
nomics of data. Some other aspects of the case are a focus on the possible harm associated with
bundling and tying, and the company restricting the app developers to even share information
on alternate payment options.

5.16 Advertisement Technology (‘AdTech’) case (2022)19

In this case the Informant, i.e. Digital News Publishers Association (DNPA), is an NGO estab-
lished with an objective to promote and secure the interest of digital news publishers. The In-
formant was joined by the Indian Newspaper Society and News Broadcaster & Digital Associ-
ation, who were other publishing Associations, in filing the case against Google. The Inform-
ants alleged that Alphabet, which is the parent holding group of Google, has revenues amount-
ing to $116bn out of which 84% came from the advertisement business. The Informants alleged
that they were in the business of news media which is the bedrock of any functioning democ-
racy and they have made huge investments in raising the related infrastructure. The Informants
suggested that COVID-19 took a huge toll on the business of news as there was an unprece-
dented shift towards online media from offline channels. The Informants further discussed their

18
Case No. 24 of 2021 at the CCI
19
Case No. 41 of 2021 at the CCI
 13

business model on how the advertisement revenues in the offline space have been dwindling
in the last decade thereby resulting in increased dependence on digital advertising. The Inform-
ants alleged that even though the context of the interaction with advertisers is mostly built by
its members, it is Google and its affiliated companies which take away the major advertising
revenue. The Informants further alleged that Google is a dominant entity in the digital adver-
tising space, and the unilateral decision-making by the company in terms of keeping the process
opaque and determining revenues to be paid to the publishers is in violation of competition
law. It was further alleged that Google is running Google News which isn’t a creator but an
aggregator of news and is further used to distort the market in favour of the company and
detriment of the publishers. The Commission has held a prima facie case of contravention
against the company and directed a detailed investigation focused on network effects.

5.17 AIOVA Sellers Association Vs. Amazon & Ors. (2022)20

In this case the Informant was an Association having a membership of over 2,000 sellers using
various online platforms to sell their products. The Informant alleged that Amazon is one of
the largest e-marketplaces in the world thereby leaving the sellers with limited options but to
be present on the platform. The Informant alleged that sellers have made considerable invest-
ments to enhance their visibility on the platform which could not be transferred to any other
online or offline platform thereby resulting in a lock-in effect. The Informant further alleged
that Amazon is engaging in practices such as deep discounting and lack of platform neutrality
which are in violation of competition law. It was also alleged that Amazon charges a higher fee
from independent sellers as compared to those who are in vertical relations with the company.
The Commission did not pass the order on merits and dismissed the matter on procedural
grounds.

5.18 Suo moto case against Amazon (2022)21

In this case, prominent news agency Reuters published a special report dated 13th October,
2021 titled ‘Amazon copied products and rigged search results to promote its own brands, doc-

20
Case No. 29 of 2020 at the CCI
21
Suo moto Case No. 04 of 2021 at the CCI
 14

uments show’. The CCI initiated a suo moto matter against Amazon for using data of independ-
ent sellers to run a systematic campaign of creating knockoffs and manipulating search results
to boost its own product lines in India which may be in violation of competition law. The
company gave a detailed and point-by-point rebuttal of the allegations in the matter. As such,
the Commission closed the matter on merits.

5.19 Umar Javeed & Ors. Vs. Google (2022)22

This was the most prominent case where the Informants were consumers of Android-based
smartphones. The Informants alleged that Google is a dominant entity in the Android OS and
it has signed various agreements such as Mobile Application Distribution Agreement
(‘MADA’) and Anti-fragmentation Agreement (‘AFA’)/ Android Compatibility Commitment
(‘ACC’) with OEMs to ensure that its dominance is cemented in violation of competition law.
It was alleged that such agreements result in the signing of restrictive and exclusive clauses
where the OEM is either able to offer Google’s services/ apps to the consumers on an exclusive
basis, or not offer them at all. It was further alleged that the company engages in bundling and
tying where it pre-installs an app suite on the mobile devices which hinders the development
of competing services in the market.

The Commission went to the functioning of the respondent entity and assessed multiple rele-
vant markets. Some of the key relevant markets in this matter included the market for licensable
OS for smart mobile devices, the market for app store for Android smart mobile OS, the market
for general web search services, the market for non-OS specific mobile web browsers and the
market for online video hosting platform (OVHP) in India. The Commission highlighted the
consumer harm associated with practices such as bundling, tying and pre-installation as de-
ployed by Google before holding them as anti-competitive. The CCI imposed a penalty of 10%
of the average annual turnover of the last three years and behavioural remedies such as allowing
OEMs to choose from amongst Google’s proprietary applications to be pre-installed and de-
ciding the placement of preinstalled apps on their smart devices to course correct the market.

5.20 Google pay case (2022)23

22
Case No. 39 of 2018 at the CCI
23
Case No. 07 of 2020, 14 and 35 of 2021 at the CCI
 15

The facts of the case were that confidential information was filed against Google alleging anti-
competitive conduct in its business practices. The anonymous Informant was joined by Match
Group and Alliance of Digital India Foundation (ADIF), which were a global tech company
and an Indian startup Association respectively, in filing the information. The Informants al-
leged that Google is a prominent tech company across the globe which is running various dom-
inant products such as search engine, mobile OS, mailbox, navigation services and online video
streaming platform. It was alleged that the company is using its dominance in a vast range of
services to prefer its own recently launched UPI app known as Tez/ Google Pay in violation of
competition law. It was further alleged that the company has mandated the usage of the Google
Play payment system and in-app billing to the detriment of competitors and consumers. It was
further alleged that Google Pay was being pre-installed in Android devices harnessing the sta-
tus-quo bias of the consumers and giving preferential treatment to one app to the detriment of
competing apps.

The CCI identified three relevant markets in this case which were the ‘market for licensable
OS for smart mobile devices’, ‘market for app stores for Android smart mobile OS’ and ‘apps
facilitating payment through UPI’ in India. The Commission focused on the mandatory usage
of GBPS system for app developers on the Play Store and highlighted the harm caused due to
such a practice. The Commission passed a contravention order and imposed a penalty of seven
percent of the average annual turnover for the last three years apart from ordering behavioural
remedies such as allowing app developers from using any third-party payment processing ser-
vices, allowing end users to access and use within apps, in any manner, the features and services
offered by app developers to course correct the market.

5.21 Google Payment Policy case (2024)24

The facts of the case are that the Informant, i.e. People Interactive India Private Limited, is a
tech company which operates brands such as Shaadi.com, and Sangam.com and provides
online matchmaking classified services. The Informant was joined by Mebigo Labs Private
Limited, Indian Broadcasting and Digital Foundation and Indian Digital Media Industry Foun-
dation, which were a tech company, Indian Television Industry Association and Online Curated
Content Publishers (OCCPs) respectively, in filing the case. The Informants have alleged that

24
Case No. 37 of 2022, 17 and 27 of 2023 at the CCI
 16

the updated payment policy of Google on Play Store adversely affects the competitors, con-
sumers and app makers and is in violation of competition law. The Informants alleged that
Google deploys a ‘User Choice Billing (UCB)’ where the app makers are charged a commis-
sion of 11%, or 26% commission rate on the transaction which is excessive in nature. The
Informants further alleged that the entire cost of apps on the Play Store is borne by just 3% of
the apps which cross the certain threshold turnover mark which is discriminatory in nature. The
Informants have further alleged that Google is using its dominance in one relevant market of
licensable smartphone OS to protect its position in the payment processing market which is in
violation of competition law. The Commission has held a prima facie case of contravention
against the company and directed a detailed investigation to look into the question of pricing.
The matrix currently in use is the cost price incurred by the concerned seller.
 17

Table 5.1
Antitrust Cases in Digital Markets at the Competition Commission of India

S. No. Case title Finding Ruling of the CCI

1 Eximcorp India Pvt. Ltd. Vs M/s Non-contravention  Search results are auto-
Google mated
 No observations on
opacity of the process

2 Singhania & Partners LLP vs Mi- Non-contravention  Divided order

crosoft Corporation (I) Pvt. Ltd. &  Majority order held that
Ors. there is enough competi-
tion in the market
 Minority order held that
lack of interoperability
is a competition concern

3 Sonam Sharma vs Apple Inc. USA Non-contravention  Assessment of exclusive

& Ors. distribution agreement
 RM cannot be on the ba-
sis of single brand
 No dominance; no abuse

4 Mr. Mohit Manglani vs M/s Flip- Non-contravention  Exclusive arrangement

kart India Private Limited & Ors. may not always be anti-
competitive

5 Taj Pharmaceuticals Ltd. & Ors vs Non-contravention  Main allegations did not
Facebook & Ors. pertain to digital mar-
kets; CCI passed the or-
der on merits
6 Shri Vinod Kumar Gupta, Char- Non-contravention  Multiple competitors in
tered Accountant Vs. WhatsApp the market (Hike,
Inc. WeChat etc.)
 No switching cost appli-
cable

7 matrimony.com vs. Google Contravention  Competition assessment

of search buyers and
T&C between various
entities
 Majority order found vi-
olation on more than
three instances
 Minority order did not
find contravention

8 Vishal Gupta Vs Google LLC Non-contravention  Adversarial order

 18

 Ubiquitous industry
practice may not be anti-
competitive
 Majority order did not
find violation
 Minority order sug-
gested further investiga-
tion

9 Delhi Vyapar Mahasangh and Flip- Pending  No final observations

kart Internet Private Limited and  Growing presence of e-
Ors. commerce industry
 Increased dependence of
sellers on platforms

10 Harshita Chawla Vs. WhatsApp Non-contravention  Competition aspects in

Inc. and others digital markets were rec-
ognised
 Dominance of
WhatsApp in the RM es-
tablished
 ‘Usage/transaction’ as a
standard of abuse
11 Lifestyle Equities C.V. and another Non-contravention  Adversarial order
Vs. Amazon Seller Services Pri-  Weighing of the argu-
vate Limited and others ments
12 Baglekar Akash Kumar Vs. Non-contravention  Standalone usage of ser-
Google vices
 No coercion for usage of
service
13 In Re: Updated Terms of Service Pending  No final observations
and Privacy Policy for WhatsApp  Economics of data was
Users recognised
 Business model of the
respondent was scruti-
nised
14 Kshtiz Arya vs. Google Pending  No final observations
 Network effects in DM
were recognised
 Highlight on the compe-
tition effect of pre-in-
stallation
15 Together We Fight Society Vs. Pending  No final observations
Apple Inc. & Another  Focus on the business
model of the company
 Economics of data was
recognised
 Highlight on the compe-
tition effect of bundling,
tying and restricted pay-
ment options
 19

16 Digital News Publishers Associa- Pending  No final observations

tion Vs Google (Alphabet, Inc.)  Highlight on the lack of
availability of data
 Detailed investigation is
ordered
17 AIOVA Sellers Association Vs. Non-contravention  No observations on
Amazon Seller Services Pvt. Ltd. merit
& Others  Case dismissed on pro-
cedural grounds
18 Suo Motu Case No. 04 of 2021 Non-contravention  Suo moto matter
 Point-by-point rebuttal
of allegations
19 Umar Javeed vs. Google Contravention  Assessment of multiple
RMs
 Highlight on consumer
harm with practices such
as bundling, tying and
pre-installation
 Monetary penalty along
with behavioural reme-
dies
20 XYZ vs. Google Contravention  Assessment of three
RMs
 Focus on competition
aspects of mandatory us-
age of GBPS system
 Monetary penalty along
with behavioural reme-
dies
21 People Interactive India Private Pending  No final observations
Limited vs. Alphabet Inc.  Highlight on the pricing
policy of Google
 ‘Cost price’ as a used
matrix
Source: Compiled by the authors
 20

6. Analysis

A cumulative analysis of the orders passed by the CCI would suggest that it has been looking
into competition concerns in the digital markets for the last thirteen years, i.e. since 2011. The
Commission over this period has received 28 information (‘complaint’) from the first parties
and has taken suo moto cognisance in one of the orders. The Information filed at the CCI cover
the swathe of impugned conducts in the digital markets from lack of interoperability to self-
preferencing, bundling and tying and cross-utilisation of data by subsidiaries. Over this period,
the Commission has developed three contravention orders and twelve non-contravention or-
ders. There are additional six prima facie orders which are currently pending for disposal. There
have been three minority orders as well - one in Singhania LLP, matrimony.com and Vishal
Gupta case each - where the CCI held a case of contravention, non-contravention and further
investigation respectively.

It is suggested that one of the landmark orders passed by the CCI is in the Umar Javeed case.
The reasoning given by the Commission contributes to the majority of the jurisprudence devel-
oped on digital competition in the Indian context till date. The analysis conducted by the au-
thority reflects the holistic understanding of digital markets where the Commission gave due
weightage to each ‘relevant market’ on a standalone basis, and at the same time adopted an
‘ecosystem’ approach which draws upon the linkages present between various markets. The
CCI found the existing provisions of the Competition Act, 2002 sufficient to address the un-
derlying anti-competitive conduct in this case.

The other place which reflects on the efficacy of the current legislative framework is the
WhatsApp case. The common thread between this case and Umar Javeed was that the Com-
mission was able to holistically analyse the business practices of the respondent entities giving
due weightage to the efficiency aspects associated with it. Even though the original subject
matter of inquiry was the cross-utilisation of data, the Commission utilised its regulatory pow-
ers and looked into a host of practices such as lack of interoperability and lock-ins which were
considered relevant to identify the competition concerns existing with the respondent. The
other commonalities were a focus on the economic significance of data, network effects and
subsequent antitrust concerns resulting in the digital markets.

It is further suggested that in few instances, the CCI had the opportunity to look into competi-
tion in digital markets, however, it missed the bus. For instance, in the Eximcorp case, the
 21

Informant alleged that there is a possibility of opacity in the online bidding process and self-
preferencing in the Search Engine Result Pages (SERPs) shown by Google Inc., however, the
Commission preferred to look the other way. Similarly, in the Sonam Sharma case, the CCI
defined the ‘relevant market’ while scrutinising the conduct of Apple Inc. only to be retracted
later25. There was a further lack of holisticity in the CCI’s analyses, at least, during the first
half of the assessed period which partly reflects the nascent nature of the regulator26. Mohit
Manglani case, Vinod Kumar Gupta, Harshita Chawla and Lifestyle CV were where due alle-
gations were made, however, the Commission erred in assessing the underlying competition
concerns.

A combined reading of these orders would have multiple policy implications in India. First and
foremost, the Commission was able to look into the impugned conduct under the existing leg-
islative framework. Practices such as bundling, tying, pre-installation, self-preferencing and
cross-utilisation of data are duly held to be covered under the existing standard of abuse under
the law, giving an impression that the existing competition law framework is sufficient to ad-
dress competition concerns in digital markets. There seems a kind of reluctance on the part of
the CCI to exercise its suo moto/ regulatory powers to promote competition in the market. This
is reflected in the history of the CCI where it has opened just a single investigation on its own
in the last fifteen years in the digital markets27.

A closer look, however, would suggest that all the contravention orders passed by the CCI are
silent on the timing of the intervention made by the regulator. This aspect is important as the
remedy under the law has to be delivered in a timely manner. There are further concerns on the
non-quantification of damages by the CCI for the injured parties thereby leaving open the ques-
tions related to regulatory capacity. This also reflects upon the inefficacy of the existing legis-
lative framework as it allows to look into the abuse of dominance only on an ex-post basis. In
such a case, there is merit in amending the regulatory framework on an ex-ante basis which
duly caters to the harmful effects associated with contended practices such as bundling, tying,
self-preferencing and cross-utilisation of data among others28. The respondent entities should

25
Jain, S. (2019, August 1). CCI’s Evolution in Relation to the Smartphone Market. Indiacorplaw. Retrieved
June 11, 2024, from https://indiacorplaw.in/2019/08/ccis-evolution-relation-smartphone-market.html
26
Bhattacharjea, A. (2003). India’s Competition Policy: An Assessment. Economic and Political Weekly,
38(34), 3561–3574. http://www.jstor.org/stable/4413938
27
Suo moto Case No. 01 of 2021 at the CCI
28
Carugati, C. (2023). Compliance principles for the Digital Markets Act. Bruegel. http://www.jstor.org/sta-
ble/resrep54811
 22

be given a safe harbour defence wherever they are able to prove on an objective basis, the
efficiency aspects of such contended practices. The question of regulatory capacity could only
be addressed by increasing the budgetary allocation of the CCI. This is where the recommen-
dations of both CDCL and CLRC coincides.

7. Conclusion

Based on the detailed analysis of the orders passed by the CCI in digital markets, it is suggested
that the current legislative framework is sufficient to the extent of identifying the anti-compet-
itive practices such as bundling, tying, self-preferencing and cross-utilisation of data among
others. The limitation, however, exists in the timing of the intervention. This is important from
two standpoints, i.e. regulatory capacity and efficacy of the existing legislative framework.
Given that the provisions of the current law only allow the CCI to intervene on an ex-post basis,
i.e. when the conduct has already taken place, there is merit is amending the regulatory frame-
work on an ex-ante basis where harmful effects with practices such as bundling, tying, self-
preferencing and cross utilisation of data are duly acknowledged. The tech companies should
be given a safe harbour defence where they are able to objectively prove the efficiency aspects
of such contended practices. This would be in line with the global best practices. The regulatory
capacity could be enhanced by increasing the budgetary allocation of the CCI through the state
exchequer. This would further allow the CCI to quantify the damages, which hitherto has been
an untackled question.