Shashwat Mishra, Mumbai Uncensored, 8th January 2022:
Taking cognizance of the complaint filed by the Digital News Publishers Association, Competition Commission of India (CCI) has ordered a probe against Google’s alleged abuse of its dominant position in the digital news space which includes website traffic and other search engine-based news platforms.
CCI in its order remarked, “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,” Digital News Publishers Association, the complainant, a private company that promotes and ensures securing the interest of digital news publishers, contented in its complaint that majority of the traffic on news websites is controlled by online search engines and Google is claimed to be the most dominant search engine.
The complainant further contends that more than 50% of the traffic is routed through Google, and Google with the help of its algorithms is in a good position to decide which website gets discovered when a particular news is searched. Besides this, the complainants further submit that Google is a major player in the digital advertisement space unilaterally decides the amount to be paid to the news publishers for the content created by them as well as the terms on the basis of which this amount is paid. The commission on this point opined in its order, “No doubt, Google, being the gateway, generates substantial traffic for news publishers, but at the same time, the bargaining power imbalance and denial of a fair share in the advertising revenue, as alleged by the Informant, merit detailed investigation,”.
The other point of importance is the legislative framework within which the CCI acts and orders investigation, as we know the Competition Act, 2002 is the legislation that deals with anti-competitive practices, CCI’s powers and its functions are governed by the above act. In the instant case, the commission has launched an investigation against the tech giant for allegedly violating section 4 of the competition act, 2002. Section 4 of the act, defines “abuse of dominant position”. The bare definition of dominant position is the sheer ability of the enterprise which commands a position of strength in the market (high market share) and can operate independently from the prevailing market forces as well as has the ability to affect competitors or consumers or the relevant market in its favor.
Google’s experience in countries such as France and Australia has not been very good as far as the digital news space is concerned. In these countries, the issue was similar to what is raised by the complainants in this case, and in those jurisdictions, Google was asked to enter into good faith negotiations with news publishers for paid licensing of content to address the bargaining power imbalance between Google and media publishers.
It would be interesting to see how the investigation is panned out as the regulator has directed its investigative arm, the director-general (DG), to conduct an investigation into the issue and submit a report within 60 days.
