'CCI Order Against Google Will Boost Digital Innovation': Interview With The 3 Young Lawyers Who Fought The Legal Battle

Search Engine Giant Google has been in news headlines for over a week now. This is because of two orders passed by the Competition watchdog of India, which heavily fined the Company.The first order passed by the Competition Commission of India on October 20 imposed a penalty of Rs. 1337.76 Crore on Google under Section 27 of the Competition Act, 2002, for abusing its dominant position in multiple markets in the Android Mobile device ecosystem.The CCI's order came in a complaint filed three advocates in 2018: Umar Javed, Sukarma Thapar and Aaqib Javeed. While Umar had previously worked with CCI for half a decade before shifting to a PSU, Sukarma is practising independently and Aaqib just stepped into litigation a year ago after completing his Masters in Law. In this interview with Rintu Mariam Biju, Senior Correspondent, LiveLaw, the trio reveal exclusive details on what prompted them to file the case against the Google, the impact of the CCI order on the ground level and lot more. What were the factors that influenced/motivated you to go ahead with the case?U: From the start itself, we were interested in the area of Digital Technology and its developments. In 2018, there was an order passed by the EU Commission wherein Google was penalised for its anti-competitive practises. After some research, we understood that similar practises are prevalent in India as well. At that time, I was using an Android phone which enabled me to cross check whether I could delete the built-in apps installed on the phone Google Mobile Services (GMS apps), whether Google search engine appeared on top, among others. S: When EU passed its judgement in 2018, we felt that it was a pertinent case for India since Android phones had one of the largest markets in the country. We were astonished by the growth of the market and the number of users it influenced. Keeping the EU order in perspective, we were analysing how commoners were affected. Once we found the issues, we wanted to flag it to the CCI. That was the intention from the beginning. Can you give a brief of the key allegations made against Google in your complaint for the benefit of our audience? U: So, if a phone manufacturer intends to procure a license from Google, they will have to enter into multiple agreements, two of which are Mobile Application Distribution Agreements (MADA) and Android Compatibility Commitment Agreements (ACC). The first allegation was pertaining to GMS apps. These agreements were anti-competitive because it curtailed the manufacturer's choice of using the Android software. Second was Bundling, which simply means that even if the manufacturer requires only one app (out of the many offered by Google), by the virtue of the agreements, they would have to take all apps. It's an 'all or nothing' situation for them. Manufacturers do not have the liberty to pick and choice. The third allegation was on Anti-fragmentation agreements wherein the manufacturer is not allowed to modify or customize the android software. A: To give an example, if YouTube was not pre-installed on Android phones, it would not have been as popular as it is now, in India. This is just an instance of how these agreements work on the ground level and how it manipulates the customers. Considering the nature of the case, it's only a fair guess regarding the difficulty in accessing various documents in support of your case? How did you find the relevant materials? S: We did not have access to the agreements that Google entered into with the Android manufacturers. We just struck our luck by digging into supporting documents to strengthen our allegations. There was a Harvard Professor, who at that time was assessing Google's practises and wrote a working paper on that subject. The paper, which received worldwide coverage detailed the clauses in Google's agreements. We drew from that along with applicable Indian data. But there's only so much that you can draw from foreign data because it's not relevant to the Indian market. In US, Apple is dominant, which is not the case in India. In the Indian market, we had to draw parallels on how Android market is more dominant, how smartphones are Android based, how the software is installed and how Google's agreements are having an effect on denying access to new players. Undertaking thorough research is fairly common as far as CCI cases are concerned. Unlike civil cases, it's not a party vs party here (micro level). CCI only interferes when there's a macro level issue. So, the idea is to convince the Commission that the whole Indian geography and the Indian market will be affected. What are your views on the order passed by CCI? Do you think it dealt with all aspects that you had pointed out in the complaint? S: CCI has not only delved into different markets which we had flagged but went beyond by investigating into allegations which we were not able to pin-point. For instance, the EU Commission's order highlighted that the phone manufacturers who...

'CCI Order Against Google Will Boost Digital Innovation': Interview With The 3 Young Lawyers Who Fought The Legal Battle

Rintu Mariam Biju

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