'Google's Conditions On Digital News Publishers Prima Facie Unfair, Abuse Of Dominant Position' : CCI Orders Probe

On Friday, the Competition Commission of India directed a probe against Google with respect to allegations of abuse of dominant position raised by Digital News Publishers Association. The Association had filed information under Section 19(1)(a) of the Competition Act, 2002 ("Act") against Alphabet Inc., Google LLC, Google India Private Limited and Google Ireland Limited.Noting that Google prima facie abused its dominant position in relation to news aggregation services, the CCI ordered the probe"In a well-functioning democracy, the critical role played by news media cannot be undermined, and it needs to be ensured that digital gatekeeper firms do not abuse their dominant position to harm the competitive process of determining a fair distribution of revenue amongst all stakeholders. Therefore, the alleged conduct of Google appears to be an imposition of unfair conditions and price which, prima facie, is a violation of Section 4(2)(a) of the Act," the order read.Digital News Publishers Association is an association of online platforms of major mainstream media like Indian Express, Times Group, NDTV, India Today, ABP, Malayala Manorama etc. Allegations raised by the Informant The primary allegation raised by the informant is that more than 50% of the total traffic on the new websites is routed through Google, and it being the dominant player determines which news website would get discovered. Though the content is produced by news media companies, online search engines, like Google, end up leveraging a sizeable portion of the revenue and the publisher pockets only 51% of the advertisement spent by the advertisers. The informant had further alleged that Google is the major stakeholder in the digital advertising space and unilaterally decided the amount to be paid to the publishers and the manner in which it is to be paid. The informant delineated four relevant markets - (i) market for online search advertisement services in India, (ii) market for online general web search services in India, (iii) market for publishing of news content in Indian and (iv) market for online advertisement in India, and submitted that globally as well as in India, Google has substantial market share in all these relevant markets. Therefore, it is contended that Google enjoys a dominant position in terms of Section 19(4)of the Act. Violation of Section 4(2)(a)(i)The informants alleged that while allowing website links of publishers on their search engine, Google imposes direct/indirect unfair conditions on them. The publishers are not made aware of the revenue earned by Google from the advertisements on their websites. The revenue shared by Google with the publishers is done arbitrarily and unilaterally. Thus, it concluded that dominant position is being used by Google to impose arbitrary conditions on the publishers in violation of Section 4(2)(a)(i). Violation of Section 4(2)(b)(ii)It was alleged that Google's unfair practices have discouraged innovation and technical development of services provided by the publishers, which are detrimental to the interest of the consumer as well as the journalism industry. Violation of Section 4(2)(c)It was averred by the informant that by using its dominant position Google had restricted the publishers access to the digital advertising space. Further, the unilateral and unfair practices adopted in sharing of revenue had forced the publishers to suffer losses. Violation of Section 4(2)(e)The informant argued that though Google has now entered the news aggregation genre, it does not produce its own news. Its growth is attributable to the use of its dominant position in the relevant markets as they use advanced algorithmic tools to cater tailor-made news as per the viewing history of each consumer. The techniques adopted by Google have made publishers loose out on traffic. Google forces publishers to implement Accelerated Mobile Pages ("AMP"), which leads to reduced traffic. The only alternative to AMP is to subscribe with Google, which would benefit it at the detriment of the publishers. Analysis of the Commission The Commission noted that in Google Search Bias case it had already held that Google is dominant in the market for online general web search services and market for online search advertising services in India. It was observed by the Commission that as per data available on www.satista.com, Google's market share ranged from 98% to 99% in the mobile search engine market between April, 2019 and July, 2021. The entry barriers to the relevant markets were noted by the Commission. Significant investment was required to be made by new entrants to develop sophisticated algorithms or to reach the required scale of search queries. It was noted by the Commission that the discoverability for news publishers also appeared to be dependent on search results from Google which indicated that the selling of advertisement spaces on the ...

'Google's Conditions On Digital News Publishers Prima Facie Unfair, Abuse Of Dominant Position' : CCI Orders Probe

Sohini Chowdhury

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