On 7 January 2022, the Competition Commission of India directed a probe against Google concerning allegations of abuse of its dominant position raised by the Digital News Publishers Association, an organization comprising the digital platforms of some of the leading Indian newspapers and media groups. It includes platforms and news media organizations such as Eenadu, Malayalam Manorama, Bennett Coleman, Indian Express, NDTV, India Today, and the ABP group.
The DNPA has submitted information under Section 19(1)(a) of the 2002 Competition Act against Alphabet Inc., Google LLC, Google India Private Limited, and Google Ireland Limited. The CCI noted that Google had prima facie abused its dominant position in providing its news aggregation services, and ordered a probe in the matter.
Our readers may be aware that Google has already been compelled by the competition commissions of the governments of Australia, France and recently Germany to come up with a fairer way of sharing revenues with news publishers. In other news markets, news publishers have resorted other types of law suits, but the most successful strategy thus far has been to cite Google’s unfair practices to competition commissions in various countries and news markets.
The CCI’s order read in part, “In a well-functioning democracy, the critical role played 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 primary allegation raised by the DNPA is that more than 50% of the total traffic on the news websites is routed through Google, and it being the dominant player determines which news website gets discovered. Although the content is produced by the news media platforms, online search engines such as Google leverage a sizable portion of the revenue while the publishers receive only a small part spent by the advertiser.
Another allegation is that with Google being the major stakeholder in the digital advertising space, it unilaterally decides the amount to be paid to publishers and how it pays. The DNPA (also called the informant in the CCI order) described four relevant advertising markets – (i) the market for online search advertising services in India, (ii) the market for online general web services in India, (iii) the market for publishing news content in India, and (iv) the market for online advertisement in India. It submitted that globally as well as in India, Google has a substantial market share in all these relevant markets and therefore enjoys a dominant position in terms of Section 19(4) of the Act.
The DNPA also submitted that while allowing the website links of the publishers on its 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 the publisher’s websites and this revenue is shared arbitrarily and unilaterally. Thus the submission is that Google is using its dominant position to impose arbitrary conditions on the publishers in violation of Section 4(2)(a)(i).
Under Section 4(2)(c), the DNPA alleges in its submission that Google’s unfair practices discourage innovation and the technical development of the services provided by the publishers, which is detrimental to the interest of the consumer as well as to the journalism industry.
Citing Section 4(2)(e), the DNPA argued that though Google has now entered the news aggregation genre, it does not produce its news. It said that since Google’s growth is because of its dominant position by the use of its algorithms which provide tailor-made news based on the search and viewing history of each consumer, the publishers have lost out on web traffic. Google’s forcing of publishers to implement its Accelerated Mobile Pages has reduced traffic, while the only alternative to AMP would be to subscribe to Google, which would be to the detriment of the news platforms.