Competition law in digital space: Exclusionary conduct by tech conglomerates

ByORF

May 17, 2022 02:54 PM IST

Share Via

Copy Link

The piece has been authored by Rahul Ray.

The last few decades have witnessed a rise in the use and accumulation of data, often called ‘the oil of the 21st century’. Meanwhile, existing laws and regulations are inadequate in dealing with these changing data consumption patterns; this is true for India. Wrongdoings by tech companies can often go unpunished, including predatory pricing, abuse of dominance, and exclusionary conduct. This brief discusses India’s antitrust laws and regulations in the digital space, focusing on the Competition Commission of India (CCI) and the Indian Competition Act, 2002. Using the actions of Google and Microsoft as case studies, it examines the scope of “exclusionary conduct” in competition law.

The Big Five in tech—Google, Amazon, Apple, Facebook, and Microsoft—operate more than half of the global internet market. The growth of these conglomerates and their acquisition of an increasing number of companies has allowed them to engage in anti-competitive activities, such as deep and pervasive control of markets, abuse of dominance, and signing of horizontal and vertical agreements.(AP)

At the heart of any competition law regime is the promotion of free markets and the elimination of anti-competitive practices. India, for example, established the Competition Commission of India under the Indian Competition Act (2002), to protect and promote competition in markets, prevent practices that hinder competition, and protect the rights and interests of consumers. In the United States (US), two key antitrust laws are in place—i.e., the Sherman Act and the Clayton Act—to curb anti-competitive activities. Similarly, the Treaty for the Functioning of the European Union (TFEU) is aimed at penalising offenders that disrupt healthy competition in the local markets. Articles 101 to 106, which form the basis of the antitrust regime of the European Union (EU), outlaw agreements that lead to cartelisation, monopolistic practices, and abuse of dominance.

To fulfil their mandate, antitrust agencies in different parts of the world investigate industry giants and issue litigations against them when required. In the US, for example, between the late 1980s and the 1990s, the Federal Trade Commission (FTC) found cause to investigate the actions of companies such as AT&T, Kodak Eastman Co., Standard Oil, and American Tobacco Co. The European counterpart litigated against United Brands, Consten & Grunding, and Michelin. In more recent years, the technological revolution has led to a shift in the nature of investigations and litigations, and today, they are covering more companies operating in the digital realm.

The Big Five in tech—Google, Amazon, Apple, Facebook, and Microsoft—operate more than half of the global internet market. The growth of these conglomerates and their acquisition of an increasing number of companies has allowed them to engage in anti-competitive activities, such as deep and pervasive control of markets, abuse of dominance, and signing of horizontal and vertical agreements. Such activities have put these enterprises on the radar of antitrust regulators in various jurisdictions. Google, in particular, has frequently been at the centre of controversy in different parts of the world, in relation to antitrust issues including search manipulation, Android dominance, and online advertising monopoly. The EU has been investigating the company since 2010 and has fined it approximately $10 billion so far.

The report can be accessed by clicking here

(The piece has been authored by Rahul Ray.)