Competition Commission of India: In the order passed by a bench comprising of Mr. Devender Kumar Sikri (Chairperson), Mr. S.L. Bunker (Member), Mr. Sudhir Mital (Member), Mr. Augustine Peter (Member), Mr. U.C. Nahta (Member), Mr. G.P. Mittal (Member), addressed two cases i.e. Case No. 07 of 2012 and Case No. 30 of 2012, both filed under Section 19(1) (a) of the Competition Act, 2002 (the Act), eventually clubbed together having similar issues and a common respondents being Google LLC, Google India Private Limited and Google Ireland Limited (GIL).
The brief facts being that it was averred by the informants, Matrimony.com and Consumer Unity & Trust Society, that Google has been running its core business of ‘Search and Advertising’, in a discriminatory manner, causing harm to advertisers and indirectly to the consumers and creates an uneven playing field by favoring its services and partners, through manually manipulating its search results to the advantage of its vertical partners and it was also further posited that in order to promote Google’s own vertical search sites, it started mixing many of its vertical search results with the organic search results, thus asserting and abusing its dominant and monopolistic position in the market, in contravention with the provisions of Section 4 of the Act.
Based on the investigation report and various contentions put forward, the Competition Commission observed and affirmed that Google has a dominant position in the relevant Indian market, despite the presence and standing of strong competitors like Yahoo! and Microsoft Bing. It was further, observed that Specialized Search Services like Google News, Google Maps, Google Flights etc., has harmed its competitors and also making the search results ‘biased’, ‘limited’ and not based on the mechanism of ‘Universal Results and Common units’ affects the competition.
The Commission found the internet giant to be abusing its dominance in Online web search and Online search advertising markets by imposing unfair conditions upon Trademark owners whose trademarks are being allowed to be bid as keywords (as third party) in online search advertising, blazoning its conduct to be anti-competitive in terms of Section 4(2)(a)(i), 4(2)(b)(ii), 4(2)(c) and 4(2)(e) of the Act.
The CCI comprising of Mr. Sikri, Mr. Bunker, Mr. Peter and Mr. Nahta, held that, in respect of the Flight Commercial Unit, Google is to display a disclaimer in the commercial flight unit box indicating that the ‘search flight’ link placed at the bottom leads to the Google’s Flight page, and not the results aggregated by any other third party service provider so that the users are not misled. However, CCI also observed that it did not find any contravention with respect to Google’s specialised search design, AdWords and online distribution agreements.
The Commission while referring to the case Excel Crop Care Limited v. Competition Commission of India, (2017) 8 SCC 47, imposed a penalty of Rs 135.86 crore at the rate of 5% of their average total revenue generated from India operations for the financial years 2013-2015, for infringing anti-trust conduct.
While giving a dissenting opinion, Mr. Sudhir Mital and Mr. G.P. Mittal, disagreed with the Majoritys’ view in respect of the alleged contravention of Section 4(2)(a)(i) of the Act by Google in respect of Flights Unit, and stated that the remedy provided to upload a disclaimer for the same, will not eliminate the harm caused or likely to be caused to the third party websites and that more necessary steps should have been taken to empirically examine as to how the high visibility of flight units affected third party travel verticals. Also, further dissenting to the Majoritys’ conclusion regarding Direct (negotiated) Search Intermediation Agreements and historic use of Fixed Position for Universal Results, demurred that the system were not sufficiently advanced to conduct a relevance comparison for all positions on the result page which made Google to fix their positions on Search Engine Result Page (SERP). [Matrimony.com Limited v. Google LLC,2018 SCC OnLine CCI 1, dated 31.01.2018 and Dissent Note dated 08-02-2018]
Google penalized for abusing its predominance to create a ‘Search Bias’ being limited and not rooted to Universal Results and Common units
