Context

• The Indian anti-trust body, the Competition Commission of India (CCI)’s move, in October, to impose a penalty of ₹1,337.76 crore on Google for abusing its dominant position in the android mobile device ecosystem, has forced us, once again, to rethink the market power of Big Tech companies.

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Background: Acknowledging the big tech company’s market distorting abilities

• India did not account for network effect of big techs: When India established the CCI under the Indian Competition Act 2002, it was to protect and promote competition in markets, and prevent practices that hinder competition. However, it did not account for the network effect of Big Tech companies as a force to reckon with.
• Countries are realised their market dominance and moved to transform competition law: As their market dominance increased rather exponentially, the European Union, the United States, and even Australia realised their market-distorting abilities and moved to transform their competition law.
• For instance, European union’s Digital market Act: The EU’s Digital Market Act and “gatekeepers” who will enforce rules and regulations ex-ante to foresee anti-competitive practices is an example.

Competition Commission of India

• CCI is the competition regulator in India.
• It is a statutory body responsible for enforcing The Competition Act, 2002 and promoting competition throughout India and preventing activities that have an appreciable adverse effect on competition in India.
• It was established on 14 October 2003. It became fully functional in May 2009.

Big techs and the Market dominance issue

• Market dominance is natural but gets hazy when its abused: In any free economy, market dominance is natural but things get hazy when it is abused to prevent competition.
• Google’s case: As the CCI says, the intent of Google’s business was to make users on its platforms abide by its revenue-earning service, i.e., an online search to directly affect the sale of their online advertising services. Thus, network effects, along with a status quo bias, created significant entry barriers for competitors to enter or operate in the markets concerned.
• Fundamental role of pricing and as a determinant of competition: Predatory pricing entails the lowering of prices that forces other firms to be out competed. Amazon and Flipkart were accused of deep discounting and creating in-house brands to compete with local sellers. Only recently, the CCI raided their offices in an anti-competition probe, leading to Amazon being forced to cut its ties with Cloudtail.
• Consumers consent has no value: A crucial aspect of self-preferencing beyond the search algorithms is the bundling of services, especially with pre-installed apps, where the manufacturers eliminate competition without the consumer’s consent. Apple is facing heat in the U.S. and Europe over pre-installed apps after Russia forced Apple to provide third-party apps at the time of installation.

Use of data, issue of consumer protection

• Big techs self-asserted right to use, store and transfer consumers data: While the data economy has evolved, we have not dealt with its regulation as effectively. There is sensitive data stored on these platforms (financial records, phone location, and medical history). Big corporations have asserted ownership of the right to use or transfer this data without restriction.
• Data greed as a motivation: While one might attribute it to efficiency barriers, the greed for data is a motivation. Further, the storage and collection of women’s and children’s data need to be dealt with more cautiously to build a safe digital place.
• Market distortions lead to data monopoly and poor quality of services: Market distortion can also lead to poorer quality of services, data monopoly, and stifle innovation.

Steps to ensure a level playing field and consumer protection in the age of digital transformation?

• Urgent to need to prevent market failures and mitigate possible anti-competitive act: While the competition laws address that anomaly, they are too slow to respond in complex technical sectors. By the time an order is passed, the dominant player has gained an edge — as in the case of Google. Thus, in this context, there is an urgent need for ex-ante legislation to prevent market failures and mitigate possible anti-competitive conduct.
• Harmony of the competition law and e-commerce rule: For a consumer, there is a need to establish harmony of the Competition law with the new Consumer Protection Act 2020 and e-commerce rules. The new law should include a mechanism to ensure fair compensation for consumers who face the brunt of the anti-competitive practices of the Big Techs. This should ensure that the penalties and restrictions being imposed on companies also ensure proportionate compensation for consumer losses.
• Ensure a level playing field for local sellers: Pricing plays a fundamental role in defining the position of any digital platform in the marketplace. It is essential to establish an ex-ante framework to ensure a level playing field for local sellers. The Government’s Open Network for Digital Commerce (ONDC) platform is a reliable option for these small players.
• New laws and provisions for digital marketplace: There is an urgent need to contextualise the law to the digital marketplace and devise new provisions with adequate ex-ante legislation. The EU has already noted this need through the Digital Markets Act. It is time that similar legislation is adopted in India.

Prelims shot: What is “ONDC”?

• Open Network for Digital Commerce (ONDC) seeks to promote open networks, which are developed using the open-source methodology.
• The project is aimed at curbing “digital monopolies”.
• This is a step in the direction of making e-commerce processes open-source, thus creating a platform that can be utilized by all online retailers.
• They will encourage the usage of standardized open specifications and open network protocols, which are not dependent on any particular platform or customized one.

Conclusion

• Witnessing the big tech’s ability of market distortion, data monopoly and market dominance, Country’s competition laws need to be vigilant through an ex-ante framework to ensure highest consumer protection. With India now on the cusp of a digital transformation, it is essential that the country a level-playing field to ensure a fair opportunity for new-age start-ups and Micro, Small and Medium Enterprises.

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