2018 (4) TMI 2005 - AT - Law of Competition

Anti-competitive action - abuse of dominant position in the online general web search and web search advertising services markets in India - imposition of monetary penalty - infringement of Section 4(2)(a)(i) of Competition Act 2002 - levy of penalty - HELD THAT - The Commission has failed to establish from the evidence on record that there is an imposition of unfair or discriminatory condition in purchase or sale of goods or services or there is a restriction of production of goods or provision of services or market technical or scientific development or indulgence in practice or practices which result in denial of market access to some player(s) in the relevant market. In the conclusion they held that the Appellant- Google creating large online platforms can wield substantial power over all market participants. By virtue of their access to the entire internet landscape as also to large volumes of personal data they may be in a position to deter new innovation or dampen consumer welfare. But it further held that market power or dominance in itself is not an antitrust concern; it is the conduct of such players that warrants careful competition scrutiny which the majority of Members have failed to prove. Levy of penalty - HELD THAT - Without deciding the question what should be the criteria of relevant turnover for the purpose of imposition of penalty which will be decided after final hearing it is directed that if the Appellants deposit 10% of the penalty amount imposed on Appellant(s) by way of FDR in favour of Registrar NCLAT within four weeks the impugned order so far it relates to penalty also shall remain stayed. Post the matter for hearing on 28th May 2018.

Summary

1. ISSUES PRESENTED and CONSIDERED

The judgment primarily revolves around the following core legal issues:

• Whether Google abused its dominant position in the online general web search and web search advertising services markets in India, in violation of Section 4 of the Competition Act, 2002.
• The legality of Google's practices regarding the ranking of Universal Results prior to 2010.
• The fairness of Google's display and placement of the Commercial Flight Unit linked to its specialized search services.
• The imposition of unfair conditions on publishers through negotiated search intermediation agreements.
• The appropriateness of the monetary penalty imposed on Google.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Abuse of Dominant Position

• Legal Framework: Section 4 of the Competition Act, 2002 prohibits abuse of dominant position by enterprises. It outlines specific behaviors considered abusive, such as imposing unfair conditions and limiting market access.
• Court's Interpretation: The majority found Google to have abused its dominant position on three counts, while the minority opinion disagreed, citing insufficient evidence.
• Key Evidence and Findings: The majority identified specific practices by Google that were deemed unfair, such as the predetermined ranking of Universal Results and restrictions imposed on publishers.
• Application of Law to Facts: The majority applied Section 4(2)(a)(i) and Section 4(2)(c) of the Act to Google's practices, finding them to contravene the provisions.
• Treatment of Competing Arguments: The dissenting opinion argued that market power alone is not an antitrust concern and emphasized the need for evidence-based regulatory interventions.
• Conclusions: The majority concluded that Google had abused its dominant position, while the minority found no contravention due to lack of evidence.

Issue 2: Ranking of Universal Results

• Legal Framework: Section 4(2)(a)(i) of the Act addresses unfair conditions in the sale of goods or services.
• Court's Interpretation: The majority found that Google's practice of pre-determined ranking positions was unfair and contravened the Act.
• Key Evidence and Findings: Evidence showed that rankings were not determined by relevance but were fixed at specific positions.
• Application of Law to Facts: The practice was deemed unfair to users, violating Section 4(2)(a)(i).
• Treatment of Competing Arguments: The minority did not find sufficient evidence of unfair imposition.
• Conclusions: The majority held Google accountable for this practice, issuing a desist order.

Issue 3: Commercial Flight Unit

• Legal Framework: Section 4(2)(a)(i) addresses unfair imposition on users.
• Court's Interpretation: The majority found the display of the Commercial Flight Unit to be an unfair imposition on users.
• Key Evidence and Findings: The unit's prominent placement was considered to limit user choice.
• Application of Law to Facts: The conduct was found to contravene Section 4(2)(a)(i) by depriving users of additional choices.
• Treatment of Competing Arguments: The Appellants argued that the unit provided additional options without compulsion.
• Conclusions: The majority directed Google to display a disclaimer to avoid misleading users.

Issue 4: Search Intermediation Agreements

• Legal Framework: Sections 4(2)(a)(i), 4(2)(c), and 4(2)(e) address unfair conditions, denial of market access, and strengthening market position.
• Court's Interpretation: The majority found Google's agreements with publishers to be unfair and restrictive.
• Key Evidence and Findings: The agreements limited publishers' choices and access to competing services.
• Application of Law to Facts: The conduct was deemed to violate Sections 4(2)(a)(i), 4(2)(c), and 4(2)(e).
• Treatment of Competing Arguments: The minority opinion found no evidence of market access denial.
• Conclusions: The majority held Google in violation, impacting the online syndicate search services market.

Issue 5: Imposition of Monetary Penalty

• Legal Framework: Section 27 of the Competition Act allows for penalties based on turnover related to the contravention.
• Court's Interpretation: The majority imposed a penalty based on Google's total turnover, while the minority questioned the basis of the calculation.
• Key Evidence and Findings: The penalty was calculated based on activities not directly related to the contravention.
• Application of Law to Facts: The penalty was challenged as disproportionate to the alleged violations.
• Treatment of Competing Arguments: The Appellants argued that the penalty should only relate to the specific contravening activities.
• Conclusions: The interim order allowed for partial stay of the penalty upon deposit of 10% of the amount.

3. SIGNIFICANT HOLDINGS

• Core Principles Established: The judgment reinforces the principle that dominance alone is not an antitrust concern; it is the conduct that requires scrutiny.
• Final Determinations on Each Issue: The majority upheld findings of abuse on three counts, while the minority found no contravention due to lack of evidence.
• Verbatim Quotes: "A dominant player will be guilty of abuse only in the presence of proof of such behaviour as emphasised in the operatives used in these clauses."
• Interim Relief: The operation of certain directions was stayed, and a partial stay on the penalty was granted pending further orders.