Three young digital economy enthusiasts whose probing landed Google with a Rs 1,338 cr anti-trust fine

CCI launched an investigation in April 2019 into Google’s conduct in the Android mobile device ecosystem, which eventually resulted in the 20 October CCI judgment and fine

New Delhi: Google has attracted its largest fine, Rs 1,338 crore, from the Competition Commission of India (CCI) for violating the Competition Act on 20 October. The fine was leveled for abusing its dominant position in multiple markets with its Android mobile operating system and was based on information provided by three young digital economy enthusiasts.

The CCI — the national competition regulator — is responsible for promoting competition and preventing activities that have an appreciable adverse effect on market competition in India.

The first fine was for around Rs 136 crore in 2018 for abusing its dominant position in online search and web advertising. The latest and third fine was for around Rs 936 crore, imposed on 25 October, for abuse of dominance in the app store market.

However, it was the second fine, of a whopping Rs 1,338 crore, that made news. While imposing the fine, CCI put forward ten measures for Google, including that Android device makers shouldn’t be forced to pre-install its services and that Google shall not restrict users from uninstalling of its pre-installed apps.

The decision was a result of information submitted to the CCI in August 2018 by Umar Javeed and Sukarma Thapar, both 27-years-old at the time and working as research associates at the CCI, and Umar’s younger brother Aaqib, who was 24 at the time and a law student at the University of Kashmir.

According to Sukarma, under the Indian competition law, individuals do not lodge complaints or cases with the CCI but only submit “information”.

After considering this information submitted by the trio, the CCI launched an investigation in April 2019 into Google’s conduct in the Android mobile device ecosystem, which eventually resulted in the 20 October CCI judgment and fine.

In its response, Google had said it would review the competition watchdog’s decision. “CCI’s decision is a major setback for Indian consumers and businesses, opening serious security risks for Indians and raising the cost of mobile devices for Indians,” it said.

Hard work to get evidence

The three of them were already interested in how the digital market was shaping up in India and how the policies and laws governing technology were influencing consumers and tech companies.

Then, events related to Google in Europe caught the trio’s attention. “In July 2018, the European Commission [the EU’s competition watchdog] imposed one of its largest fines on Google of 4.34 billion Euros for violating EU antitrust rules,” Umar said.

He explained that his research was led by his interest in the developments of the digital market worldwide and his awareness that Android had a major market share in the Indian mobile market. “I started researching and found that these practices were prevalent in India as well.”

Further research convinced the trio that there was a potential case for the Competition Commission of India to investigate.

While the work Sukarma and Umar did at CCI was confidential, Sukarma said it was unrelated to the Android market in India, adding that the information the group submitted to the anti-trust watchdog about the Android market was done in individual capacity as consumers.

The process of compiling a comprehensive dossier of information was not easy and took about two months. “We had to focus on our day jobs and then research for this later in the day. That’s when we would have some free time,” Sukarma explained.

“There were many late nights and early mornings where we would just work throughout the night,” Aaqib added. “I was still a law student then and helping these guys meant I was juggling research along with studying for exams and assignments.”

‘Only consumer-facing information available’

Apart from the long hours, even accessing relevant information was a challenge, Sukarma said.

“We needed to find information to support our allegations [that Google was potentially abusing its dominant position in the Android device ecosystem] and had to dig deep looking for supporting information,” she explained. “But we were limited to the publicly available resources.”

Umar said this made compiling evidence a tough task because they only had access to consumer-facing information to support their cause.

“We can look at an Android phone and say there are some Google-owned apps that cannot be deleted even if we wanted to, but besides that, as consumers, we have little information on how exactly Android smartphone manufacturers and app developers are affected by the role Google plays in the Android ecosystem,” he explained.

This meant that it was up to the CCI to collect insider information, Sukarma said, adding that credit must be given to the watchdog for the speed with which it performed the task.

“Given the investigation’s wide scope, the CCI would have had to examine several markets such as the smartphone ecosystem, the app developer ecosystem, and the mobile operating system ecosystem. The CCI has conducted the investigation fast, kudos to the Commission for how the investigation was conducted,” she said.

What lies ahead?

The three young informants are all lawyers now, with Umar working at a public sector undertaking, Sukarma an independent consultant for law and policy, and Aaqib a practicing advocate in Delhi.

Umar said that their efforts will result in more choice being offered to consumers of Android devices, phone makers, and app developers.

Sukarma said the CCI decision would “also encourage innovation in the digital market”.

About what legal recourse Google has now, Aaqib said Google can file an appeal to National Company Law Appellate Tribunal (NCLAT) within 60 days from receiving the order after depositing 10 per cent of the penalty.

CCI’s oversight on macro level competition, coupled with the new telecom bill, the 2021 IT rules for intermediaries, along with the yet-to-be-framed Digital India Act and data protection law, will offer a comprehensive framework to ensure transparency and accountability in the digital ecosystem, Sukarma asserted.