Antitrust Regulators' Crackdown On Big Tech

While The Competition Commission of India dawns many hats including giving a green signal to Mergers and Acquisitions, perhaps the most poignant amongst them is to eliminate practices having adverse effects on competition, protect the interests of consumers and ensure there is no abuse of dominant position and there exists freedom of trade in the markets of India¹. Section 4 of the Competition Act, 2002 provides for the prohibition of abuse of dominant position. It is worthwhile to note that the legislation is drafted in a way which does not penalise dominance in a market, but only its abuse. The dominant position can be determined in the context of the relevant market and on the basis of any of the thirteen factors enlisted under clauses (a) to (m) of section 19(4) of the Act.

The concept of abuse is an objective concept that refers to the actions of an undertaking in a dominant position that has the potential to change the market's structure by weakening competition simply by their presence and by using various strategies. Exclusionary business practices like denial of market access and unfair and discriminatory pricing have been constantly held as violative of Section 4 of the Act. The CCI in a catena of judgments has shown a proactive approach in regulating such abuse by dominant entities in their respective markets. For instance, in the case of Re Shri Shamsher Kataria v Seil Honda², Case No. 03/2011, where there already existed an agreement between the dominant entities and the Overseas Suppliers of unique vehicle parts which kept the Overseas Suppliers from providing parts to free repairers, such understandings were held to be anti-competitive as they limited passage of new firms. In the case of Belaire Apartment Owners' Association v. DLF Ltd³, CCI found the provisions of the apartment buyer's agreement to be unfair and discriminatory like unilateral changes in agreement and suppression of terms by DLF without any rights to the allottees, insignificant penalties for default by DLF. The imposition of such a lopsided agreement was held to be an abuse of the dominant position.

The CCI in a catena of judgments has shown a proactive approach in regulating such abuse by dominant entities in their respective markets. Hence, the recent order of CCI imposing large costs on Google is not only in line with the zeal the regulator has always maintained but is also in sync with what Anti-Trust Regulators in Europe and the Americas are also realising, Big Tech has become too big.

Google

The first penalty of Rs 1337 crores was imposed on Google for abusing its dominant position in multiple markets in the Android Mobile Device System. Every smart mobile device needs an operating system (OS) to run applications (apps) and programs. Android is one such mobile operating system which was acquired by Google in 2005. CCI, in its investigation, delineated five relevant markets to ascertain Google's market share in those markets and found it in a dominant position. Now, the question arose if the company was abusing such dominance in the said markets. Google operates/ manages the Android OS as well as licences its other proprietary applications and other phone manufacturers' use this OS & Google's apps in their smart mobile devices. Accordingly, they enter into multiple agreements to govern their rights and obligations viz. Mobile Application Distribution Agreement (MADA), Anti-fragmentation Agreement (AFA), Android Compatibility Commitment Agreement (ACC), Revenue Sharing Agreement (RSA), etc⁴.

MADA assured that the most prominent search entry points i.e., search app, widget and chrome browser are pre-installed on Android devices, which accorded a significant competitive edge to Google's search services over its competitors⁵. By virtue of these agreements, Google ensured that end users continue to use its search services on mobile devices which facilitated higher traction on its platform leading to higher advertisement traffic and revenue for Google. On these parameters as well on others, Google was found to be dominating its position and accordingly, in terms of the provisions of Section 27 of the Act, the CCI imposed a monetary penalty as well as issued cease and desist order against Google for contravening provisions of Section 4 of the Act.

The second strike, as per the CCI, was Google's Anti-Competitive Practices in relation to its Play Store policies. Google's Play Store policies require the App developers to exclusively and mandatorily use Google Play's Billing System (GPBS) for receiving payments as well as for certain in-app purchases. Further, app developers were prohibited from providing users with a direct link to a webpage containing an alternative payment method. These practices were held to be a hiccup in innovation, limiting technical development and leveraging dominance for higher profits at the risk and cost of other competitors. A strike has never cost so expensive, in quantifiable monetary terms at least in the game of baseball, however, for Google thanks to CCI it is quantifiable; 936.44 crores to be exact.

In another major decision against it, an EU court has largely upheld a record fine against Google for using the Android platform to cement its search engine's dominance. The €4.125bn penalty is the largest anti-trust fine ever handed down by the European Commission⁶. The ruling is expected to validate and empower Anti-Trust Regulators in other jurisdictions as well who will now use this ruling to substantiate their claims and make their cases stronger.

Apple

Much like Google, war has also been waged against Apple for its anti-competitive practices. Apple has a non-licensable operating system i.e. it does not sell its operating system to third parties, despite that Apple has been a dominant player in the worldwide smartphone market. The tech giant has primarily been facing backlash around the world for bullying developers and users alike to conform to its rules on its platforms like Apple Store, Apple Music and specifically Apple Pay as an ostentatious display of its power.

European Commission has accused Apple of violating its competition law over complaints made by Spotify in 2019⁷. Spotify alleged that Apple Music is a competitor of other music streaming applications that are charged high commission charges by Apple and are not allowed to use alternative subscription payment mediums. Purportedly Apple was abusing its dominant position. The inquiry focuses on Apple's policies, including its restrictions on the use of Near Field Communication (NFC) technology also known as "tap and go", on iPhones for making purchases in stores i.e. using only Apple pay for in-app purchases on the app store and thereby using their dominant position to restrict competition.

Executive Vice-President Margrethe Vestager, in charge of competition policy, said: "It appears that Apple sets the conditions on how Apple Pay should be used in merchants' apps and websites. It also reserves the "tap and go" functionality of iPhones to Apple Pay. It is important that Apple's measures do not deny consumers the benefits of new payment technologies, including better choice, quality, innovation and competitive price."

In the United States as well an action was brought against Apple for violation of its anti-trust laws by Epic Games in April 2020⁸. Earlier, Epic was removed from the app store for violating developer agreement policies by introducing an alternative way to make payment for its in- game currency and thereby circumventing the extortionate commission charged by Apple. The case is to be heard before the United States Court of Appeal in October 2022.

A wreath of such investigations have also been initiated against Apple in Germany, Mexico and India amongst other countries. After the fine imposed against Google, the Competition Commission of India is investigating the alleged abuse of its dominant position by Apple⁹.

Amazon

Amazon is amongst the largest multinational tech companies; it is the frontrunner in the e- commerce industry having a net worth of over a trillion dollars. The e-commerce giant plays a dual role as a marketplace and a seller i.e., while third-party sellers can sell their products on the platform, Amazon sells its products as well. Amazon has also been under the radar of antitrust regulators across the world for its anti-competitive policies.

Amazon is facing lawsuits in Columbia¹⁰, California¹¹ for violating the antitrust law of the states by effectively controlling the prices across the virtual market by entering into agreements with its sellers that mandate them to offer the lowest rate at Amazon. Sellers are thus being forced to sell at a higher price on other platforms including sellers' websites. It is further alleged that if sellers do not comply with the provisions they often face sanctions including getting their products removed from the website.

Amazon is also under investigation for its practices in European Union¹² and the United Kingdom¹³. The investigation focuses on finding if Amazon favours its sellers through the data it collects about the transactions, and products of third-party sellers. The 'buy box' feature of Amazon wherein certain products pop up at the top of the search that can directly be added to the cart has also caught the attention of the regulators who seek to keep an eye on the procedure for the selection of sellers for the feature. It is also to be determined whether Amazon is using its logistics and delivery services to favour its sellers over third parties, the regulators are thus looking into the eligibility criteria for the 'prime' label for products that are delivered in a speedier fashion to members who have subscribed to the loyalty program.

Amazon's dominant presence in the online retail market is established throughout the world, it is thus on the agenda of lawmakers to ensure that Amazon does not indulge in practices restricting competition. Even in India, the Parliamentary Standing Committee on Finance which has been taking a keen interest in various facets of anti-competitive practices, especially of tech giants had summoned top executives of Amazon (India) amongst others before the parliamentary panel¹⁴.

Anti-trust Regulators asserting their dominion, enforcing the law and ensuring that these giants, with their virtually bottomless pockets, do not further evade good business practices is welcomed and a long time coming. Even in India, the CCI's recent order on Google has sent a message across the industry that the Regulator is not just as vigilant as a hawk but is also now in sync with the Antitrust Regulators across the world who have woken up to the danger of the bargaining power of entities who's economics mirror that of Nations. The Parliamentary Standing Committees calling upon the executives of these companies and holding them accountable is another way the state has shown its intent of not shying away from a fight.