Gmail and Google Meet: Lacunae in Section 4 of the Competition Act,2002

By Avik Sarkar

College- K.L.E Society’s law college, Bengaluru

4th-year, 7th semester of 5 years BBA-LLB

Abstract

Google is a multinational miscellany of various internet-related services and products. Though Google offers a wide range of free services to its customers, it derives most of its income from various enterprises that choose to advertise themselves on their platform. Based on this, there was a case filed named Baglekar Akash Kumar v. Google LLC, where the integration of Gmail and Google Meet was in question. In light of the above case, there were a lot of conundrums that had arisen with regards to the determination of the dominant position of Google. And certain grey areas were spotted while considering the same such as, does section 4 of the Competition Act,2002 need to be revamped? Or shall the position of collective dominance be put into consideration? Is the present competition regime equipped enough to tackle every situation and catch the perpetrators of the law? Or shall every company indulging in anti-competitive practice shall be penalised irrespective of them holding a dominant position or not?

Keyword: Dominant position, Market share, collective dominance, Gmail, Google meet, anti-competitive practice.

Introduction

In the recent past, there has been a slew of cases where the competition commission of India (hereinafter “CCI”) has been constantly asked to scan certain agreements to deter enterprises from abusing their dominant position. And this time, allegations were leveled against Google LLC and Google Digital Services[1]. It was alleged by the informant that Google had used its dominance of one market to get into another.

‘relevant market’ thereby violating section 4(2)(e) of the Competition Act, 2002.

The CCI doesn’t explicitly prohibit dominance, but it prohibits the abuse of dominant position, as mentioned in section 4 of the Competition Act, 2002. An enterprise is said to be dominating when changes in the market don’t affect it or act independently of its competitors. Section 4(2)(e) prohibits using a dominant position in one relevant market to enter into or protect another relevant market. Therefore, it’s a prerequisite for the enterprise to be holding a dominating position in one market and use the same to get into another one. However, both the markets must be relevant markets separate from each other[2]

Facts of the case

In the present case, the informant had alleged that integration of Google LLC and Google Digital Services was in contravention of Section 4(2)(e). The informant stated that Gmail was the leading app used for mails as it is available in almost every electronic device, thereby giving it a dominant position. By integrating with the conferencing app Google meet, Gmail is looking to use its dominant position to enter another relevant market in contravention with section 4(2)(e) of Competition Act 2002.

Issues to be determined

  1. Does Google have a dominating position in the relevant market?
  2. Does the integration of Google Meet with Gmail lead to abuse of dominant position by Google?

Judgment by CCI

It was held that Google was not guilty of anti-competitive practices and was therefore absolved of all charges

Critical Analysis

In the present case, the CCI did not find Google using its dominant position to bad use, thereby turning down the claims for the informant against google. Further, it was stated by the CCI that the addition of the Google Meet feature in Gmail never compelled any of its users to use the feature.  The users can exercise their discretion to sue the Meet feature using Gmail or any other video conferencing app. Thus, there is no squeezing of competitors in the market. The CCI observed that: ‘For creating a Google account, the user need not be a Gmail user. He/she can use an email ID created on any other platform for creating a Google account. Thus, Google Meet is available as an independent app outside the Gmail ecosystem also. Consumers are free to choose from an array of video-conferencing Apps such as Zoom, Skype, Cisco Webex, We Conference, Microsoft Teams, and Google Meet would be competing with the likes of such Apps for providing services.’[3] This line by CCI clears the air because Google has not violated any of its terms mentioned under section 4(2)(e) of the Competition Act, 2002.

The fallacy in Section 4 of the Competition Act, 2002

As mentioned earlier, the Competition Act, 2002 doesn’t prohibit dominance but prohibits unfair use. The same was held in the case of Re: Mr. Mohit Manglani Vs. Flipkart and Ors[4] , as none of the enterprises were ‘dominant,’ therefore, it was unnecessary to examine the ‘abuse of dominance.’ On the contrary, one must notice that Section 2 of the Sherman Act prohibits monopolization and any attempts made with respect to it.

Apart from these, there are significant conundrums associated with ‘Big Data. Tech giants like Google and Amazon have so much customer data that they always have an advantage over competitors. And this can lead to the creation of barriers for new entrants in the markets. Due to huge chunks of customer data, they can always track a customer’s need and work accordingly. The rise of artificial intelligence will increase the dependency of the economy on data. Algorithms can be used in a complex manner, making it hard to track data as far as the competition rules are concerned. The EU also considers “big data” as a structural barrier to entry into the market. Therefore they are also considering overhauling their merger rules, and a developing country like India should also consider the same.

Secondly, a prominent concept of ‘collective dominance’ in a developing country like India seems to be the need of the hour. This principle is very much accepted in the EU. According to Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), collective dominance means “any abuse by one or more undertakings of a dominant position.” The Competition (Amendment) Bill, 2012, proposed the concept of ‘collective dominance’ but unfortunately it couldn’t become an Act.

Until all the lacunae mentioned above are addressed, the actual perpetrators of law will continue to exploit the same.                                                                                                                                                                                                                                                                                                                                                                                              Conclusion

Therefore, from the above arguments, there is a material amount of deficiency in section 4 of the Competition Act, 2002. The presumption of section 4 of the Competition Act, 2002 that only an enterprise that is in a dominant position can abuse its position needs to be changed. The emphasis should be on penalizing the companies who indulge in anti-competitive agreements. If the said changes are not incorporated soon, tech giants like google and amazon can create real market barriers, thereby disrupting the equipoise of the market.


[1]XYZ V. Alphabet Inc. and Others

[2] S.M Dugar, Guide to Competition Law (7th ed. Lexis Nexis 2017)

[3] CCI-Google-Meet-Gmail-Ruling-February-2021.pdf (medianama.com)

[4] 802014.pdf (cci.gov.in)

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