Google has found itself in a tight spot once again for abusing its dominant position in the tech space. The European Court of Justice’s General Court has upheld a 2018 anti-trust charge against the tech major confirming that the company imposed ‘unlawful restrictions’ on Android phone manufacturers in order to promote its search engine on mobile devices. Google now stares at a fine of 4.1 billion euros. A similar case was filed against Google in India in 2019 which is being heard by the Competition Commission of India (CCI). Experts IMPACT spoke to believe that Google can be treated as a ‘repeat offender’ when it comes to alleged monopolizing and abusing its dominant market position.
When asked if the CCI can take a leaf out of the judgement passed by the EU court, MM Sharma, Head, Competition Law and Policy, Vaish Associates Advocates says, “The issue is the same and the CCI definitely would treat it as a precedent while deciding the penalty. It can become an aggravating factor to tilt the case against Google in India. If proven guilty, Google can be fined 10% maximum of its overall turnover.”
Meanwhile in the US, while the judge dismissed the Jedi Blue Lawsuit, ruling that Google and Facebook’s deal wasn’t anti-competitive, the search engine giant will still face Texas’ multistate lawsuit over ad dominance. Remember the EU and Britain had also launched parallel investigations into the Jedi Blue ad deal earlier this year. When asked if CCI can take suo-moto action against Google in such cases, Sharma says, “CCI has the power to take a suo-moto cognizance of any offence, there is no doubt about it, but there has to be some evidence to that effect.”
When IMPACT approached senior members of CCI for their comment on the way forward in the Android case filed in India, they refused on the grounds of pending investigation. Google India spokesperson remained unavailable to comment on the issue.
Ritesh Bhatia, Founding Director of V4WEB Cybersecurity and Cybercrime Investigator and, Cybersecurity and Data Privacy Consultant says, “Such actions are not being taken in India because Big tech companies, who demonstrate monopolistic attitudes at all times, take advantage of the lack of data privacy bill unlike Europe where their GDPR is quite a strict regulation. We were hopeful of the bill getting passed this year, but it seems we have to wait longer. Regulating Big tech, who continuously abuse the law of our land with opaque policies, should become India’s top priority.”
It was first in 2018 that CCI imposed a fine of Rs 135.86 crores for ‘search bias’ following complaints by Bharat Matrimony.com (now matrimony.com) and Consumer Unity and Trust Society (CUTS) in 2012. Google was found guilty of abusing its dominant position by indulging into search bias and for imposing certain restrictions upon its direct search intermediation partners.
Meanwhile, another senior competition lawyer actively practicing in Delhi on condition of anonymity said, “Indian law system has multiple approaches. Once the CCI passes the order or penalizes an organization, it can approach the higher courts in India to appeal against the order. This makes the entire process very lengthy. CCI being the watchdog has its restrictions and has to work in tandem with the Central Government.”
Sandeep Goyal, MD, Rediffusion says, “Google exists in a highly litigated regulatory environment. So little escapes scrutiny of sovereign government. Control of Big Tech is a prime concern today for governments worldwide, especially the US.”
He further said, “Pre-install apps is a big business. We, at my company Mogaé, were once market leaders in that space. A lot of e-commerce, payment gateways and OTT spent loads of money in getting the apps burned into the phone’s software - the apps were almost impossible to delete by ordinary consumers and became default options. An adverse judgement could slow down the juggernaut but will not derail or stop it.”
Siddharth Devnani, Co-Founder & Director, SoCheers says, “Google does have a mammoth share of the display ads industry but it’s far from a monopoly. There are many global and regional players making this an open and free market. Moreover, the EU and UK’s antitrust case won’t impact advertising in India.”
He further says, “It may, however, sow the seed for similar action by the Competition Commission of India (CCI). It could, in turn, get Google and Meta to proactively ease out the tension by being fair to smaller players and going out of the way to allow them into their ‘walled gardens’. They’ll work towards significantly improving the optics of them being advertising monopolies.”
Advocate Prashant Mali, Cyber Crime and Privacy Lawyer says, “I strongly feel Indian courts should suo moto take cognizance of the EU judgement and take stringent action in the pre-installed Android App business of Google, Indians cannot be dictated by Google on what to see and form opinions based on what they alone show. I think CCI should be more forthcoming against Google as it is a water tight case of stifling the competition with the help of algorithms.”
Noelia Amoedo, CEO, Mediasmart explains the challenges faced by Adtech companies in India, "The AdTech business is moving at a very fast pace and it is ever changing, not only because of technology evolution, but also because it has to respond to - policy changes at a national and global level - notably privacy regulations, and changes in the ecosystem driven by some of the players, such as the recent shifts in the distribution of advertising user identifiers by Apple and Google."
Elad Natanson, CEO & Founder, Appnext, says, "It is important to remember that preloaded apps are nothing new — they are an important part of the app discovery process. The user experience has improved over the years thanks to preloads, with many users now considering them integral on their home screen.The benefits of preloaded apps for users, developers, and manufacturers are clear. For users, there is the convenience that these apps offer – users get personalized and contextualized recommendations for newservices and content."
Natanson further says, "For manufacturers, they strengthen their brand by providing enhanced user satisfaction with new content offerings that successfully navigates a user’s first experience with a device. As for carriers, it is the chance to maintain constant engagement with subscribers, recommend content and provide special offers and upgrades while generating new revenue streams."
Past CCI cases Against Google in India
In 2018, the CCI had imposed a fine of Rs 135.86 crore on Google for ‘search bias’ following complaints filed by Matrimony.com and Consumer Unity & Trust Society in 2012.
Following an April 2019 probe, CCI report in 2011 said Google abused the dominant position of its Android operating system in India, using its ‘huge financial muscle’ to illegally hurt competitors. The case is still being heard.
The CCI had in November 2020 directed a probe into the issue of mandatory use of Google Play Store’s payment system for paid apps & in-app purchases and whether it abused its dominance in the digital payments market. CCI in 2022 asked RBI to look into the matter.
In June 2021, CCI ordered an investigation into allegations of Google abusing its dominance in the Android operating system in India’s smart television market. CCI has asked all device manufacturers mentioned in the complaint to submit their responses to the allegations against Google.
CCI passed an interim detailed order on January 7, 2022, directing the Director General to conduct an Enquiry on the basis of complaint filed by Digital News Publishers Association alleging the abuse of dominance by Google and submit the enquiry report to CCI within 60 Days of receipt of their order.
Google Called Out Across The World
The EU Competition Commission has been investigating Google’s search algorithm since 2010 and has fined Google thrice. In June, 2017, Google was fined 2.4 billion euros ($2.7 billion) for unfairly favouring Google’s own services’ link in search results over its rivals. In March 2019, Google was slapped with a fine of 1.49 billion euros for abusing its market dominance.
In October 2020, Google reached an agreement with an association of 121 French publishers over how Google will pay for reusing snippets of their content. However, later in July 2021, Google was fined $592 million for violating pan-EU reform of digital copyright law.
United States of America
In October, last year, the US Department of Justice filed a Complaint against Google to restore Competition in Search and Search Advertising Markets. The lawsuit was filed in the US District Court for the District of Columbia to stop Google from unlawfully maintaining monopolies through anticompetitive and exclusionary practices in the search and search advertising markets. Further, in December last year, nearly 40 US states filed an anti-trust law suit against Google alleging that Google manipulates the search results.
In July 2022, The Italian anti-competition watchdog had ordered a probe against Google for the alleged abuse of dominant position in data portability in the country. While in May, 2021, Italy’s antitrust authority slapped 102.8 million euros fine on Google for the competition law charge of ‘abuse of dominant position’.
In March 2021, Former Rajya Sabha Chairman and Vice President of India, M. Venkaiah Naidu, during a Parliament session, had said that India should frame similar laws as Australia, in order to curb the issue and make giants like Google pay a share of their earnings from domestically produced news content on the internet, to the publishers.
In September 2021, Ashwini Vaishnaw (Minister of Electronics and Information Technology, Minister of Communication and Minister of Railways) also stated that online platforms need to remunerate the original creators and publishers ‘adequately’ for all the IPR produced by them.