Google files writ with Delhi HC against CCI after leak of confidential report

Google on Thursday said it has taken India’s antitrust regulator the Competition Commission of India (CCI) to court following the “leak” of a confidential interim report related to an ongoing investigation into the company’s Android smartphone agreements.

The internet giant said it has filed a writ petition in the Delhi High Court seeking redressal on the matter, specifically protesting “against the breach of confidence” which Google said impairs its ability to defend itself and harms them and their partners.

“We are deeply concerned that the Director General’s Report, which contains our confidential information in an ongoing case, was leaked to the media while in the CCI’s custody. Protecting confidential information is fundamental to any governmental investigation, and we are pursuing our legal right to seek redress and prevent any further unlawful disclosures” a Google spokesperson said in a statement.

“We cooperated fully and maintained confidentiality throughout the investigative process, and we hope and expect the same level of confidentiality from the institutions we engage with” the spokesperson added.

Last week, the Times of India reported that CCI’s investigation arm the Director General (DG) had found in its investigation that Google abused the dominant position of its Android operating system in the country to illegally hurt competitors. CCI had ordered a probe into Google’s alleged abuse of Android in India in 2019. Android powers 98% of the smartphones in the country, as per market research firm Counterpoint. The tech giant said it has not yet received or reviewed this report.

To be sure, DG’s findings is not the final decision of the CCI and is an interim procedural step. The report will now be reviewed by senior members of the regulator and give Google another chance to defend itself prior to issuing the final order, according to a Reuters report. The order may impose penalties or ask the tech giant to discontinue any anti-competitive practices.

If found guilty, Google may be fined up to 10% of the average turn-over of past three years or upto three times its net profit. The firm said it has not yet had the “opportunity to review the DG’s findings, much less submit its defence of any allegations.”

Why did CCI order a probe?
CCI had ordered a probe against Google in April 2019, following a complaint by two antitrust research associates and a law school student in 2018.

In the order, CCI had said that it is of the opinion that Google has reduced the ability and incentives of device manufacturers to develop and sell devices operating on alternative versions of Android by mandating them to agree to a set of policies under Android Compatibility Commitment in order to get access to Google’s own apps like Play Store, which is in contravention of Section 4(2) (b) of the Competition Act.

The regulator had also noted that the mandatory pre-installation of the entire suite of its own apps by device makers amounts to imposition of unfair conditions on the device manufacturers and therefore violates the Section 4(2)(a)(i) of the country’s Competition Act.
“It also amounts to prima facie leveraging of Google’s dominance in Play Store to protect the relevant markets such as online general search in contravention of Section 4(2)(e) of the Act” CCI said in its order “The conduct of Google may help perpetuate its dominance in the online search market while resulting in denial of market access for competing search apps in contravention of Section 4(2)(c) of the Act.”

CCI’s other investigations
In subsequent months, CCI has also ordered similar antitrust probes against Google’s payment app and its smart TV business alleging abuse of dominance. In 2018, it had imposed a fine of Rs 135.86 crore for “search bias” and abusing its dominant position in online general web search and web search advertising services in the country.

The regulator has also filed antitrust investigations against Facebook over WhatsApp’s contentious privacy policy update earlier this year while Apple was hit by an antitrust complaint from a Rajasthan-based non-profit called Together We Fight Society (TWFS) over in-app payments issues last month.

The move also comes a week after South Korea’s antitrust regulator The Korea Fair Trade Commission (KFTC) fined Google $177 million for allegedly abusing its market dominance to limit competition in the mobile operating system market. It said the search giant was blocking smartphone makers like Samsung Electronics and LG Electronics from using modified versions of Android operating systems through its anti-fragmentation agreements. It is also facing several antitrust investigations across the world including multiple lawsuits in the United States.

Meanwhile, the Alliance of Digital India Foundation (ADIF), a New Delhi thinktank consisting of entrepreneurs and startups, is likely to meet MeitY officials next week to discuss possible policy intervention to address the abuse of dominance by the big tech companies like Google and Apple. PTI