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Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 1
COMPETITION COMMISSION OF INDIA
Case No. 37 of 2022
In Re:
People Interactive India Private Limited
Informant
And
Alphabet Inc.
Opposite Party No. 1
Google LLC Opposite Party No. 2
Google India Private Limited Opposite Party No. 3
Google India Digital Services Pvt. Ltd.
Opposite Party No. 4
WITH
Case No. 17 of 2023
In Re:
Mebigo Labs Private Limited
Informant
And
Alphabet Inc.
Opposite Party No. 1
Google LLC Opposite Party No. 2
Google India Private Limited Opposite Party No. 3
Google India Digital Services Pvt. Ltd.
Opposite Party No. 4
WITH
Case No. 27 of 2023
In Re:
Indian Broadcasting and Digital Foundation
Informant No. 1
Indian Digital Media Industry Foundation Informant No. 2
And
Alphabet Inc.
Opposite Party No. 1
Google LLC Opposite Party No. 2
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 2
Google India Private Limited Opposite Party No. 3
Google Asia Pacific Pte. Ltd.
Opposite Party No. 4
Google Ireland Ltd
Opposite Party No. 5
CORAM:
Ms. Ravneet Kaur
Chairperson
Mr. Anil Agrawal
Member
Ms. Sweta Kakkad
Member
Mr. Deepak Anurag
Member
Present
For People Interactive India
Private Limited (PIIPL)
: Mr. Jayant Mehta, Sr. Advocate with Mr. Abir
Roy, Mr. Aman Shankar, Mr. Vivek Pandey, Mr.
Udit Dedhiya and Mr. Sasthibrata Panda,
Advocates
For
Mebigo
Labs
Private
Limited (Mebigo)
: Mr. Abir Roy, Mr. Aman Shankar, Mr. Vivek
Pandey and Mr. Sasthibrata Panda, Advocates
For Indian Broadcasting and
Digital Foundation (IBDF) and
Indian Digital Media Industry
Foundation (IDMIF)
: Mr. Rajshekhar Rao, Senior Advocate with Ms.
Pallavi Shroff, Mr. Yaman Verma, Ms. Parinita
Kare, Mr. Ritwik Bhattacharya, Mr. Rohan
Bhargava, Mr. Shivek S. Endlaw, Advocates
along with Mr. Rishi Sharma and Ms. Siboney
Sagar, Representative of IBDF/IDMIF
For Alphabet Inc., Google LLC,
Google Ireland Limited, Google
India Private Limited, Google
: Mr. Sajan Poovayya, Senior Advocate with Mr.
Karan
Singh
Chandhiok,
Ms.
Deeksha
Manchanda, Ms. Avaantika Kakkar, Mr.
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 3
Asia Pacific Pte. Ltd. and
Google India Digital Services
Private Limited (collectively,
‘Google’/ ‘OPs’)
Kaustav Kundu, Mr. Tarun Donadi, Ms.
Bhavika Chhabra, Mr. Palash Maheswari, Ms.
Raksha
Agrawal,
Mr.
Aditya
Sahagal,
Advocates along with Mr. Thomas Bohnett, Ms.
Aditi Gopalkrishnan and Ms. Richa Srivastava,
Representatives of Google.
Order under Section 33 of the Competition Act, 2002
1.
The present order shall govern the disposal of interim relief prayers made by the
Informants seeking interim relief in terms of the provisions contained in Section 33
of the Competition Act, 2002 (“the Act”) against the arrayed Opposite Parties. The
Commission, vide an order dated 15.03.2024 passed under Section 26(1) of the Act,
prima facie found a case of contravention of the provisions of Section 4 of the Act
against the Opposite Parties, as detailed therein, and ordered the Director General
(“DG”) to cause an investigation to be made into the matter.
2.
By way of background, it is noted that the Informations in the captioned cases have
been filed under Section 19(1)(a) of the Act against Google alleging contravention
of Section 4 of the Act, on its part.
3.
Case No. 37 of 2022 has been filed by People Interactive India Private Limited
(PIIPL) which is stated to be an internet company and operates brands such as
Shaadi.com and Sangam.com and providing online matchmaking classified service
across the globe.
4.
Case No. 17 of 2023 has been filed by Mebigo Labs Private Limited (Mebigo)
which is stated to be an internet company that owns the brand such as Kuku FM and
provides audio content such as audiobooks, stories, originals and similar categories
through apps and website across the globe.
5.
Case No. 27 of 2023 has been filed by Indian Broadcasting and Digital Foundation
(IBDF) and Indian Digital Media Industry Foundation (IDMIF). IBDF is stated to
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 4
be a leading association which inter alia works towards the interests of the Indian
television industry and the digital media industry. IDMIF is stated to be a subsidiary
of IBDF.
6.
The Opposite Parties offers various internet-based products including a proprietary
digital store for mobile based applications, i.e., Google Play Store, and its
proprietary OS, i.e., Android OS.
7.
Google filed its reply on the allegations as well as interim relief applications on
28.02.2024 and thereafter, the Informants also filed their respective rejoinders on
04.03.2024 and 05.03.2024. The Commission also heard the detailed arguments
made by the learned senior counsel(s) appearing on behalf of PIIPL, IBDF/IDMIF
and Google and the learned counsel appearing on behalf of Mebigo on 06.03.2024.
Thereafter, the Commission decided to pass an appropriate order in due course. The
parties have also filed brief synopsis of their oral arguments.
8.
The Informants are primarily aggrieved with Google’s updated payment policies in
relation to its proprietary app store (i.e., Google Play Store), which are alleged to be
in violation of Section 4 of the Act and is stated to be impacting several stakeholders,
including app developers, payment processors, and users alike.
9.
The Commission considered the information available on record and vide its order
dated 15.03.2024 passed under Section 26(1) of the Act noted that the Informants
are primarily aggrieved by the billing policy of Google for in-app purchases and
paid apps. The Commission in the said prima facie order has delineated two relevant
markets in the present case for examining the alleged abusive conduct of Google
i.e., the market for licensable OS for smart mobile devices in India and the market
for app stores for Android smart mobile OS in India. Further, Google has also been
found to be dominant in these two relevant markets. The Commission has also
formed a prima facie view that Google has violated the provisions of Section
4(2)(a), 4(2)(b) and 4(2)(c) of the Act, as detailed therein which warrants detailed
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 5
investigation. The Director General (‘DG’) has been directed to complete the
investigation and submit a consolidated investigation report within a period of 60
days from the date of receipt of the said order.
10.
In this backdrop, the Commission deems it appropriate to consider the interim relief
prayer made by the Informants. During the course of hearing, all the parties made
detailed arguments on the interim relief prayers. The Informants vide their post
hearing submissions filed revised interim prayers. For felicity of reference, these
interim relief prayers are excerpted below:
Combined Interim Prayers filed by PIIPL and Mebigo
It is most humbly prayed that this Hon’ble Commission, pending a final order in this
case, may graciously be pleased to:-
1. Direct that Google should not mandate the sharing of any financial information
or payment transaction-related data (whether manually or through API), if, an
in-app purchase or paid transaction is processed inside an app through third-
party billing systems (other than GPBS).
2. Prohibit Google from levying any fee / commission, if, an in-app purchase or
paid transaction is processed inside an app through third-party billing systems.
3. Direct Google to keep in abeyance its policy of mandating any guidelines,
including UI/UX Guidelines (interim or final) which provides for user interface
/ flow;
4. Direct Google not to delist and/or hamper the visibility of the apps listed on
Play Store for non-adherence to the Impugned Policies of Google.
5. Pass any other order as may be appropriate under the Competition Act, 2002.
Interim Relief Prayers filed by IBDF/IDMIF
It is humbly prayed that pending the investigation and final disposal of the
Information, in the interim, the Hon’ble Commission be pleased to stay the
implementation of the Google Payments Policy, inter alia including on the
following terms / conditions:
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 6
(i) restrain the imposition of any fee / commission for transactions involving
paid downloads or in-app purchases on apps offering digital products /
services, including transactions processed through either GPBS or
alternative payment processors under UCB;
(ii) restrain the collection of any data from app developers. To facilitate any
eventual payment by the app developers, should the Hon’ble Commission
finally rule in Google’s favour, app developers be directed to collect and
collate and keep available with themselves the data required for
calculation of the fee in an aggregated form as directed by the Hon’ble
Commission;
(iii) direct Google to allow all app developers (whether providing physical or
digital products or services on their apps) the ability to provide the same
payment option, and to impose no additional conditions on app
developers providing digital products or services on their apps, than
those imposed on app developers providing physical products or services
on their apps; and
(iv) direct Google not to de-list any app developer for failure to comply with
any of the above provisions of the impugned Google Payments Policy.
11.
Section 33 of the Act reads as follows:
“Power to issue interim orders
33. Where during an inquiry, the Commission is satisfied that an act in
contravention of sub-section (1) of section 3 or sub-section (1) of section 4
or section 6 has been committed and continues to be committed or that such
act is about to be committed, the Commission may, by order, temporarily
restrain any party from carrying on such act until the conclusion of such
inquiry or until further orders, without giving notice to such party, where it
deems it necessary.
12.
Explaining the statutory scheme, the Hon’ble Supreme Court of India in the case of
Competition Commission of India v. Steel Authority of India Ltd., Civil Appeal No.
7779 of 2010 decided on 09.09.2010 held that this power has to be exercised by the
Commission sparingly and under compelling and exceptional circumstances.
Further, it was held that the Commission, while recording a reasoned order inter
alia should: (a) record its satisfaction which has to be of much higher degree than
the formation of a prima facie view under Section 26(1) of the Act in clear terms
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 7
that an act in contravention of the stated provisions has been committed and
continues to be committed or is about to be committed; (b) it is necessary to issue
order of restraint and (c) from the record before the Commission, it is apparent that
there is every likelihood of the party to the lis, suffering irreparable and irretrievable
damage or there is definite apprehension that it would have an adverse effect on
competition in the market.
13.
In legal proceedings, the granting of interim relief is a crucial aspect of ensuring
fairness and justice, particularly when a matter is under investigation. Interim relief
serves to prevent irreparable harm or maintain the status quo until a final decision
is reached. However, the principles governing the grant of interim relief necessitate
a careful consideration of the circumstances and alignment with the issues at hand
as guided by the Hon’ble Supreme Court in the abovementioned judgement.
14.
One of the fundamental principles for granting interim relief is the requirement for
a clear nexus between the relief sought and the issues under investigation or in
dispute. The Commission in the instant matter has directed investigation on select
issues as against varied allegations made by the three Informants. Therefore, the
relief sought must correspond to the issues outlined for the investigation. A plain
reading of the interim relief prayers when juxtaposed with the issues on which
investigation has been directed, reveals that there are various interim relief prayers
in respect of which there is no corresponding direction for investigation viz. interim
relief prayer relating to collection of data, UI/UX interface, etc. Therefore, no relief
can be granted in respect of the same.
15.
Further, the Commission has been prayed to restrain Google from collecting any fee
for transactions involving paid downloads or in-app purchases on apps offering
digital products / services. While there may be concerns about the fairness of
Google's fee structure as outlined by the Commission in its prima facie order dated
15.03.2024, it is essential to recognize the costs and responsibilities associated with
maintaining and operating app stores. In relation to this relief, Google has submitted
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 8
that grant of the same would virtually amount to requiring Google to offer Play for
free to developers in India. No other court or regulator has passed a similar relief
despite repeated requests. This recognises that Google cannot provide its platform
without any consideration, especially when developers continue to charge their
users for digital in-app purchases and enjoy the services of Play. While it is
essential to ensure a level playing field and protect competition within the app store
market, any measures taken should be proportionate and carefully crafted to
minimize unintended consequences and preserve the overall integrity and
functionality of the platform ecosystem. Based on the foregoing, the Commission is
of the view that the Informants have not been able to demonstrate a case in their
favour for grant of interim relief for complete restraint on Google from collection
of its fee.
16.
The Commission is further of the view that the Informants have also failed to meet
the necessary criteria for grant of interim relief as propounded by the Hon’ble
Supreme Court. The Informants have not been able to project any higher level of
prima facie case warranting a positive direction as sought for by the Informants at
the interim stage. The Informant has also not been able to demonstrate as to how the
impugned conduct would result in irreparable harm that cannot be remedied through
monetary compensation. The Commission is also not persuaded that balance of
convenience lies in favour of the Informants.
17.
Viewed in the aforesaid backdrop, the Commission is of the considered opinion that
no case whatsoever has been made out by the Informants which warrants grant of
interim relief. Resultantly, the applications stand dismissed.
18.
It is also made clear that nothing stated in this order shall be tantamount to a final
expression of opinion on the merits of the case, and the DG shall conduct the
investigation without being swayed in any manner whatsoever by the observations
made herein.
Case Nos. 37 of 2022, 17 of 2023 and 27 of 2023 9
19.
The Secretary is directed to communicate to the parties and the Office of the DG,
accordingly.
Sd/-
(Ravneet Kaur)
Chairperson
Sd/-
(Anil Agrawal)
Member
Sd/-
(Sweta Kakkad)
Member
Sd/-
(Deepak Anurag)
Member
New Delhi
Date: 20 / 03 / 2024
