Case BriefsForeign Courts

Supreme Court of The United States: In a major decision in the copyright dispute between Google and Oracle over copying certain lines from Oracle’s Java SE API (Application Pro­gramming Interface) code; the SCOTUS while deciding in favour of Google, held that Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their ac­crued talents to work in a new and transformative program, was a fair use of that material as a matter of law. The Court decided the issue with a ratio of 6:2, with Justice Stephen Breyer authoring the majority opinion. He was joined by John Roberts, C.J., and Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh, JJ. While Clarence Thomas and Samuel Alito, JJ., dissented. Amy Coney Barret, J., took no part in considering or deciding the matter.

Facts: Oracle America, Inc. owns a copyright in Java SE, a computer platform that uses Java computer programming language (invented by Sun Microsystems). In 2005, Google acquired Android, seeking to build a new software platform for mobile devices. To allow the millions of programmers familiar with the Java programming language to work with its new Android plat­form, Google copied roughly 11,500 lines of code from the Java SE pro­gram. The copied lines are part of a tool called an Application Pro­gramming Interface (API). An API allows programmers to call upon prewritten computing tasks for use in their own programs. Oracle had claimed to be owed as much as $9 billion, while Google claimed that its use of the code was covered under the doctrine of fair use and therefore not subject to copyright liability.

Issues Involved: Over the course of a prolonged litigation, the following points of consideration emerged-

  • Whether Java SE’s owner could copyright the copied lines from the API.
  • Whether Google’s copying constituted a permissible “fair use” of that material freeing Google from copyright liability.

The Federal Circuit had ruled in Oracle’s favour and held that the portion is copyrightable and Google’s copying did not constitute a “fair use”.

Significant Observations: The SCOTUS had to review the Federal Circuit’s determinations vis-à-vis copyrightability and fair use, therefore in order to settle the matter ‘for argument’s sake, the Court assumed that the material was copyrightable. The Court discussed the dispute under the following important heads-

  • Regarding Copyright- The majority observed that the objective of copyrights and patents as per the US Constitution is to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writ­ings and discoveries.” It was observed that copyright encourages production of works that others might cheaply reproduce, by granting the author an exclusive right to produce the work for a period of time. However, in order to dilute the negative consequences of such exclusivity, the Congress and the Courts have limited the scope of copyright protection to ensure that a copyright holder’s monopoly does not harm the public interest. The Court also noted that the dispute involves 2 aspects enshrined in Section 107 of US’ Copyright Act, namely- copyright protection cannot extend to “any idea, procedure, process, system, method of operation, concept, princi­ple, or discovery”; a copyright holder may not prevent another person from making a fair use of a copyrighted work.
  • Regarding Fair Use- The majority noted that ‘fair use’ is a flexible doctrine which takes account of changes in technology. “Computer programs differ to some extent from many other copyrightable works because computer programs always serve a functional purpose. Because of these differences, fair use has an im­portant role to play for computer programs by providing a context-based check that keeps the copyright monopoly afforded to computer programs within its lawful bounds”. The Court also observed that fair use question is a mixed question of fact and law, and the re­viewing courts should appropriately defer to the jury’s findings of un­derlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. “The “right of trial by jury” does not include the right to have a jury resolve a fair use defense”. Applying these observations to the current dispute, the Court noted that it needs to scrutinize the issue vis-à-vis the four guiding factors specified in the Copyright Act’s fair use provision-

The purpose and char­acter of the use In order to inquire about the “purpose and character of the use”, it must be examined whether the copying at issue was “trans­formative,” i.e., whether it adds something new, with a further pur­pose or different character. The Court observed that Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different compu­ting environment without discarding a portion of a familiar program­ming language. Google’s purpose was to create a different task-related system for a different computing environment (smart phones) and to create the Android platform which would help achieve and popularize that objective. Google’s purpose was therefore consistent with that creative progress that is the basic constitutional objective of copyright itself

The nature of the copyrighted work- The nature of the work at issue favors fair use. The copied lines of code are part of a “user interface” that provides a way for pro­grammers to access prewritten computer code through the use of sim­ple commands. As part of an interface, the copied lines are inherently bound together with non-copyrightable ideas i.e. the overall organization of the API and the creation of new creative expression (the code inde­pendently written by Google). Unlike many other computer programs, the value of the copied lines is in significant part derived from the in­vestment of users (computer programmers in this case) who have learned the API’s system. Given these differences, application of fair use here does not undermine the general copyright protection that Congress provided for computer programs.

 Amount and substantiality of the portion used in relation to the copyrighted work as a whole- Observing that the 11,500 lines of code that Google copied, even though which amounts to virtually all the declaring code needed to call up hundreds of different tasks; however the lines in question form only 0.4 % of the entire API at issue, which consists of 2.86 million total lines. Therefore the 11,500 lines of code should be viewed as one small part of the considerably greater whole. “Google copied these lines not because of their creativity or beauty but because they would allow pro­grammers to bring their skills to a new smartphone computing envi­ronment”.

Effect of the use upon the potential market for or value of the copyrighted work- The Court noted that Google’s new smartphone platform is not a market substitute for Java SE. it was also pointed out that Java SE’s copyright holder would benefit from the reimplementation of its interface into a different market.

 Dissenting Opinion: Disagreeing with the majority, Justices Clarence Thomas and Samuel Alito observed that the nature of the copyrighted work (which in their opinion was the sole factor possibly favoring Google) cannot by itself support a determination of fair use because holding otherwise would improperly override Congress’ determina­tion that declaring code is copyrightable. They also pointed out that, “The majority purports to save for another day the ques­tion whether declaring code is copyrightable. The only ap­parent reason for doing so is because the majority cannot square its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable. The majority has used fair use to eviscerate Congress’ considered policy judgment”. [Google LLC v. Oracle America Inc., No. 18–956, decided on 05-04-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) dismissed the case of the informant who alleged that Google is abusing its dominant position by integrating Google Meet App into the Gmail App.

Allegations | Abuse of a Dominant Position

In the present matter, information was filed under Section 19(1)(a) of the Competition Act, 2002 by Informant against Google LLC (OP-1) and Google India Digital Services Private Limited (OP-2) alleging contravention of the provisions of Section 4(2)(e) of the Act.

Gmail is an App from Google, where the user gets all their emails, direct messages, etc., and that Gmail enjoys a ‘dominant position’ in the emailing and direct messaging market. Further, it was claimed that ‘Meet’ is a video-conferencing App from Google, where all kinds of virtual conferences and meetings happen.

Informant alleged that Google which is a dominant player has integrated the Meet App into the Gmail App which amounts to abuse of dominant position by Google.

Analysis, Law and Decision

Commission noted that users of Gmail are not forced to necessarily use Google Meet, and there does not appear to be any adverse consequences on the users of Gmail for not using Google Meet, such as withdrawal of Gmail or any of its functionalities or other services that are so far being provided by Google. A Gmail user at his/ her ‘free will’ can use any of the competing VC apps.

Further, it was added to the above observation that anyone with a Google Account could create an online meeting using Google Meet. For creating a Google account, the user need not be a user of Gmail. He/she can use email ID created on any other platform for creating a Google account.

Google Meet is available as an independent app outside the Gmail ecosystem also.

Therefore, users have the choice to use either of the Apps with all their functionalities without necessarily having to use the other. Even though Meet tab has been incorporated in the Gmail app, Gmail does not coerce users to use Meet exclusively as submitted by Google and the consumers are also at freewill to use either Meet or any other VC app for video conferencing.

Hence, no case was made out. [Baglekar Akash Kumar v. Google LLC, 2021 SCC OnLine CCI 2, decided on 29-01-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members), prima facie opined that alleged conduct on the part of Google merit detailed investigation.

Present information was filed under Section 19(1)(a) of the Competition Act, 2002 by the XYZ — Informant against Alphabet Inc. — OP 1, Google LLC — OP 2, Google Ireland Limited — OP 4 and Google India Digital Services Private Limited — OP 5 alleged contravention of provisions of Section 4 of the Competition Act, 2002. OPs collectively referred to as ‘Google/Opposite Parties’.

Factual Matrix

Informant averred that other than Android and Google Search, Google’s core products include a web browser and online video streaming service as web-based e-mail service, an online mapping, navigation and geolocation service, an app store, etc. The said services are part of Google Mobile Services i.e. the bundle of Google apps and services that Google licenses to smartphone manufacturers/Original Equipment Manufacturers.

Re-branding of ‘Tez in India’ to ‘Google Pay’

In addition to the core products of Google, Google launched a Unified Payment Interface (UPI) based payment app called Tez in India, which was rebranded as Google Pay. With UPI, everyone with a bank account in India can create a Virtual Payment Address and start transacting using a mobile phone.

OP-1 is to be the holding company of OP-2.

Allegations | Google Pay being favoured over the Android Operating System 

Informant alleged that Google, through its control over the Play Store and Android Operating System (OS) is favouring Google Pay over other competing apps, to the disadvantage of both i.e. apps facilitating payment through UPI, as well as users.

Informant has alleged that Google, through its control over the Play Store and Android Operating System (OS), is favouring Google Pay over other competing apps, to the disadvantage of both i.e. apps facilitating payment through UPI, as well as users.

As per the Informant, the above amounts to an abuse of its dominant position by Google in violation of various provisions of Section 4 of the Act.

Analysis

Opposite Parties requested the Commission to dismiss the Informant’s confidentiality claims including on his identity. It has been stated that Google’s ability to sufficiently defend its position will be compromised if it cannot have access to the background context and other facts relevant to the present issues, including whether or not the Informant has sufficient standing.

Commission noted that allegations of the Informant are primarily two-fold i.e. :

(a) mandatory use of Google Play’s payment system for purchasing the apps & In-App Purchases in the Play Store

(b) excluding other mobile wallets/UPI apps as one of the effective payment options in the Google Play’s payment system.

In relation to mandatory use of Play’s payment system for paid apps & in-app purchases, the Commission is of prima facie view that mandatory use of application store’s payment system for paid apps & in-app purchases restricts the choice available to the app developers to select a payment processing system of their choice especially considering when Google charges a commission of 30% (15% in certain cases) for all app purchases and IAPs.

The resultant market power being enjoyed by Google due to its grip over the Android ecosystem apparently resulted in ‘allegedly’ high commission fee of 30%.

As per the Informant, other payment processing solutions charge a significantly lower fee for processing payments.

While stating that the ‘allegedly’ high fee would increase the cost of Google’s competitors and might affect their competitiveness, Commission opined that it is of prima facie view that imposition of such condition is unfair in terms of Section 4(2)(a) of the Act. Hence various pleas of Google like offering a secured system, the necessity of Play’s billing system etc., can be appropriately examined during the investigation.

Commission also noted that the mandatory use of application store’s payment system for paid apps & in-app purchases along with the associated issue of alleged ‘high’ service fee/commission has been a matter of concern in other parts of the world as well.

Adding to the above, bench stated that the conduct of Google amounts to imposition of unfair and discriminatory condition, denial of market access for competing apps of Google Pay and leveraging on the part of Google, in terms of different provisions of Section 4(2) of the Act.

Pre-installation and prominence of Google Pay on Android Smartphones

Pre-installation of GPay may create a sense of exclusivity and default as users may not opt for downloading competing apps.

It appears that Google already has a significant market presence in UPI based digital payment applications market and it may affect the evolving and transitory market in its favour. In such a stage of evolution, Google using its market position in applications relating to licensable mobile OS, search engine, app store, browser, etc. to enter into contractual arrangements with OEMs for pre-installation of GPay, may disturb the level playing field.

in view of the state, Commission agreed with the Informant and prima facie opined that alleged conduct on the part of Google merit detailed investigation.

Search manipulation and Bias by Google in favour of Google Pay

Informant contended that Google rigged its featured app lists in favour of Google Pay.

Informant alleged that the prominent placement of Google Pay amounts to a violation of Section 4 of the Act as it results in:

(i) imposition of an unfair condition on users and the broader payments ecosystem including other apps facilitating payments through UPI;

(ii) imposition of a discriminatory condition on mobile wallets and other apps facilitating payment through UPI;

(iii) limitation of technical and scientific development;

(iv) denial of market access; and

(v) leveraging.

Commission further opined that manipulation of features on/by the dominant platform, along with other self-preferencing means, may work as a potent instrument to divert traffic to its newly launched app and thus interfering with the process of ‘competition on the merits’. 

Having considered the allegations holistically, the Commission noted that except the bald assertions made by the Informant, nothing on record is there to evidence such manipulation as alleged by the Informant hence Commission opined that no investigation could be ordered on the basis of assertions made by the informant which are neither corroborated or otherwise substantiated.

The mere allegations in the form of screenshots which are not supported/corroborated by any other material, cannot be the basis for launching an anti-trust inquiry.

Decision

In view of the above, the Commission held that a detailed investigation is warranted as OPs have contravened various provisions of Section 4  of the Competition Act, 2002.

Commission directed the Director-General to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act.

Hence, a case is made out against Google for directing an investigation by the DG. [XYZ v. Alphabet Inc., 2020 SCC OnLine CCI 41, decided on 09-11-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and KM Joseph, JJ has asked Google India to face trial in a 2008 criminal defamation matter and has held that Section 79 of the Information Technology Act, 2000, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 of the IPC. Section 79 of the IT Act, prior to its substitution, exempted Network Service Provider from liability only on proving that the offence or contravention was committed without its knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention

The Court was hearing a matter relating to Criminal Defamation wherein an article was published by the Coordinator of Ban Asbestos India, a group hosted by Google, defaming the complainant, a public limited company engaged in the business of manufacturing and selling asbestos cement sheets with seven manufacturing plants and more than twenty-five marketing offices all over India. The article dated 31.07.2008 captioned “Visaka Asbestos Industries making gains”. It was, hence, argued that the asbestos cement sheets have been manufactured for more than 70 years in India, however, the complainant was singled out though there are other groups manufacturing asbestos cement products. Google India had argued that it was not the intermediary and that the intermediary is the Parent Company.

On this the Court held that, even proceeding on the basis that the first accused is the originator, as defined in the Act, of the allegedly defamatory matter, and the first accused is not only the author but is also the publisher of allegedly defamatory matter, and again proceeding on the basis that it is the appellant, who is the intermediary and not its Parent Company, the refusal on the part of the appellant to remove the post, may amount to publication. It said,

“there may be publication within the meaning of Section 499 of the IPC even in the case of an internet operator, if having the power and the right and the ability to remove a matter, upon being called upon to do so, there is a refusal to do so.”

Considering the facts of the case, the Court noticed that proceeding on the basis of the assumption that the appellant is the intermediary and that it stood alerted by the complainant by letter dated 09.12.2008, the appellant has not removed the offensive posts though it could technically remove it, therefore, it amounted to publication and this publication attracts Section 499 of the IPC.

The Court was, however, considerate of the fact that even in Section 482 of the Cr.PC, the court must qualify the right and the power of the appellant even assuming to be the intermediary to act freely as it would opposed to the principles which have been evolved in regard to the internet service provider that it is not open to it to unilaterally decide as to what matter should be removed and it can act so as to remove on the basis of the request only if there is a court order.

“Any other view would make it a despot strangling the free flow of ideas which is what the internet is all about.”

The Court noted that in Shreya Singhal v. Union of India, (2015) 5 SCC 1, the provisions were read down to mean that Section 79(3)(b) of the Act and Rule 3(4) of the Rules, would require an internet service operator to takedown third-party information not on mere knowledge of objection to its continuance but after there has been an impartial adjudication as it were by a court. However, in the facts of this case, the acts constituting the alleged offence under Section 499 of the IPC, were done not when Section 79, after its substitution, was in place. The Rules were enacted in the year 2011.

“In such circumstances, what we are asked to do is to import in the principles into the factual matrix when Section 79 was differently worded and in proceedings under Section 482 of the Cr.PC.”

The Court left open to the appellant to urge before the Court the question relating to the inability of the Parent Company to remove the post without the court order. The Court, however, said that this is a question which can be, independent of the non-availability of the protection under Section 79 of the Act in its erstwhile avtar, pursued by the appellant. The Court, hence, held,

 [Google India Pvt. Ltd. v. Visaka Industries, 2019 SCC OnLine SC 1587, decided on 10.12.2019]

Hot Off The PressNews

European Court of Justice handed victory to Google by ruling that “Right to be Forgotten” does not needs to be applied outside Europe.

A dispute arose between Google and a French privacy regulator, wherein in 2015, CNIL ordered the firm to globally remove search result listings to pages containing damaging or false information about a person.

The following year, Google introduced a geoblocking feature that prevents European users from being able to see delisted links. But it resisted censoring search results for people in other parts of the world. And the firm challenged a 100,000 ($109,901; £88,376) euro fine that CNIL had tried to impose.

The Guardian reported that,

Google’s dispute with France’s privacy watchdog, CNIL, which in 2015 told Google to delist information from internet search results globally upon request, in what is called the “right to be forgotten”.

The “right to be forgotten” enables claimants to request the removal of links to irrelevant or outdated online information about them.

The US internet giant had argued that the removal of search results required under EU law should not extend to its google.com domain or its other non-EU sites.

Hot Off The PressNews

Under the Code, Participants have voluntarily undertaken to establish a high priority communication channel with the nodal officers designated by ECI. Participants including BIGO, ByteDance, Facebook, Google, Sharechat and Twitter have also agreed to take action on content reported by the nodal officer, expeditiously, in accordance with the law.

The Chief Election Commissioner in his remarks appreciated the proactive steps taken by the Association and its members [participants] to ensure transparency in regards to paid political advertisement by maintaining a repository of political advertisement with information such as the sponsor, expenditure and targeted reach of such content in an aggregated manner. Participants have built the technology to upload MCMC certification. Participants have also committed to taking action on paid advertisements violating MCMC certification requirement under notification by the ECI.

IAMAI will act as the liaison between the Participants and the ECI. Collectively, IAMAI and the member Participants of the Code of Ethics remain committed to ensuring free, fair, and ethical electoral process.

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of J.R. Midha, J., in an order directed Facebook Inc., Google LLC, YouTube LLC to remove the content as mentioned by the plaintiffs (Patanjali Ayurved Ltd.) to defame them from their respective portals.

The plaintiffs stated that videos containing slanderous, defamatory and absolutely false statements about the plaintiffs were uploaded and shared on the portals of Defendants 2 to 4 and in order to get rid of that the plaintiffs had sent a notice for the removal of such videos to the Defendants. The Defendants denied doing so as they sought for a Court order from the plaintiffs for the said act.

Further, plaintiffs submitted that the whole mechanism of approaching the Court in itself is an unreasonable and unfair procedure as it puts the citizens to a heavy cost of litigation.

Therefore, on approaching the High Court, the list of URLs published and shared on the portals of the defendants pertaining to the videos which contained slanderous and defamatory content were asked to be removed or blocked/restricted to access. Also, Defendant 1 was restrained from giving any interview in print, electronic, social media till the next date of hearing. Further, the Court asked the defendants to comply with the provisions of Order XXXIX Rule 3 of CPC. [Patanjali Ayurved Ltd. v. Meera Singh,2018 SCC OnLine Del 10543, Order dated 10-08-2018]

 

 

Hot Off The PressNews

As reported by media, in a recent ruling, European Union antitrust regulators have fined Google with 4.34 billion euro in order to restrict Google from using its Android mobile operating system.

This move is said to cause a trade war between Brussels and Washington.

EU antitrust Chief directed Google to halt anti-competitive practices with smartphone makers and telecom providers with a period of 90 days or face additional penalties of up to 5% of parent Alphabet’s average daily worldwide turnover.

Vestager also stated that ‘Google has used Android as a vehicle to cement the dominance of its search engine. The practices have denied rivals the chance to innovate and compete on the merits.

Reason for the ruling:

The US tech firm required smartphone manufacturers to pre-install Google’s search and browser apps on devices using its Android operating system, which is used on 80% of all phones. Manufacturers that refused Google would not be allowed to use its Google Play online store and streaming service.

[Source: The Guardian]

NewsTreaties/Conventions/International Agreements

Aiming to foster growth for India’s nascent artificial intelligence (AI) and machine learning (ML) ecosystem, NITI Aayog and Google have come together to work on a range of initiatives to help build the AI ecosystem across the country and. To focus on training, hackathons, mentoring startups, and providing research grants, a Statement of Intent (SoI) was signed to this effect by NITI Aayog and Google. The NITI Aayog has been entrusted to setup a national programme to conduct research and development in frontier technologies such as AI. In furtherance of this mandate, NITI Aayog has been developing India’s national strategy on AI along with the National Data and Analytics Portal to enable the wide deployment and use of AI. Artificial Intelligence is going to disrupt the way business is done and India, in particular, is uniquely poised in utilising AI to innovate for social and inclusive good. India is embracing future technologies such as machine learning and AI to augment its capacity in healthcare, improve outcomes in education, develop innovative governance systems for our citizens and improve overall economic productivity of the nation. This partnership with Google will unlock massive training initiatives, support startups and encourage AI research through PhD scholarships, all of which contributes to the larger idea of a technologically-empowered New India. Under the aegis of this program, Google will train and incubate Indian AI startups in an accelerator program. These startups will be mentored and coached by Google and its affiliates to enable them to better leverage AI in their respective business models. To help bolster the research ecosystem, one of the initiatives includes funding Indian researchers, scholars and university faculty for conducting AI-based research. Further, Google will also bring its online training courses on AI to students, graduates and engineers to numerous cities across India, in the form of study groups and developer-run courses. NITI Aayog and Google will organize a AI/ML hackathon that will be focused on solving key challenges within agriculture, education, healthcare, financial inclusion, transportation/mobility and more. This hackathon may use Kaggle, a global platform, to help facilitate international participation into these planned hackathon challenges. Google through the NITI Aayog, will conduct hands-on training programs that aim to sensitise policymakers and technical experts in governments about relevant AI tools, and how they can be used to streamline governance.

Google and NITI Aayog will work on the following initiatives

  • Organise trainings for relevant government functionaries to introduce them to open source AI tools with the goal of enabling more effective governance.
  • Awarding grants and scholarships to researchers, scholars and university faculty conducting cutting edge research in the field of AI/ML in India.
  • Organising AI/ML study jams for students and developers based on Google’s Machine Learning Crash Course (MLCC) on the fundamentals of machine learning.
  • Incubating Indian AI/ML startups in a program where they will be mentored by Google to better leverage AI in their respective business models.
  • Organise a hackathon focused on using AI/ML and open data sets to solve key challenges within agriculture, education, healthcare, etc. in India

[Press Release no. 1531504]

NITI Aayog

Op EdsOP. ED.

After three years of rigorous investigation, the Competition Commission of India (CCI) has announced its landmark decision[1] against Google, holding Google guilty of contravention of competition law on three counts out of the many investigated and imposed a penalty of Rs 135.86 crores upon Google. Informations against Google were filed by bharatmatrimony.com and Consumer Unity and Trust Society (CUTS) in 2012. CCI, by majority of 4:2, has held Google guilty of abusing its dominant position by indulging into search bias and for imposing certain restrictions upon its direct search intermediation partners.

The Commission has analysed the conduct of Google in two separate markets of “Online General Web Search Services in India” and “Online Search Advertising Services in India”, wherein both, Google was found to be undoubtedly dominant. Keeping in mind that intervention in digital markets by a regulatory authority should be “targeted” and “proportionate” lest it stifles innovation, CCI examined the various innovative features introduced by Google in the design of its results page and the effect of these new product designs on the web publishers as well as the users. Though CCI found no problem with Google’s Universal Results (groups of results of a specific type of information like news, images, local, etc.), OneBoxes (display box showing the exact answer to user query from one web publisher selected by Google) and Commercial Shopping Unit (sponsored unit on top/right of results page showing advertisements with images from which Google earns revenue). Google was found to be on the wrong side of law with respect to the display of Universal Results at fixed 1st, 4th and 10th positions prior to October 2010. The majority was of the view that such fixed positions were not based on relevance and therefore, may have misled the users. However, the minority noted that since Google has self-corrected such conduct long back, any need for regulatory intervention is obviated.

Next, in regard to Google Flights Commercial Unit, the majority has found contravention by Google as firstly, prominent placement of Flights Unit on results page pushes down third-party travel verticals (like MakeMyTrip, Goibibo, etc.) which may be more relevant for the users leading to unfairness to both travel verticals as well as the users; and secondly, since clicking on “search flights” link in this Commercial Unit takes the users to Google Flights vertical page, it amounts to unfair diversion of traffic by Google to its specialised search vertical. On the other hand, the minority on this count has observed that Commercial Flights Unit is nothing but an enhanced ad format and it is clearly distinguished by labelling the Unit as “sponsored”. Also, there is no evidence on record to establish any actual misleading or degradation or user diversion as a result of such Unit as was the case with Google Shopping Commercial Unit in the European Union. Further, since the Flights Unit does not offer any booking service but is only a comparison service, it cannot as such be compared with third-party travel verticals at all.

In the other market of online search advertising services, CCI has analysed three issues and found no problem in either of them. With regard to Google’s advertising platform of AdWords, CCI has opined that Google shares more than sufficient information with the advertisers to enable them to assess the performance of their ads and it does not discriminate with its House Ads. In respect of multihoming, CCI has found that AdWords API terms and conditions do not in any manner restrict the advertisers from transferring their ad campaigns on multiple platforms. In regard to allegations of trade mark law violation by Google allowing third parties to bid on trademarked keywords or using trademarked terms in AdTexts, CCI has very astutely restricted its jurisdiction noting that the same falls within the regulatory domain of the civil courts and an “isolated transactional imperfection” on account of “delay in whitelisting” cannot amount to competition law violation by Google.

Lastly, two more conducts of Google have been analysed — one with regard to Google’s distribution agreements and other with regard to Google’s direct intermediation/syndication agreements. In respect of distribution agreements which Google has with for instance Apple, whereby Google is the default search service provider in Safari web browser, CCI has found no “imposition” as default browser can be changed by the users at will. In regard to direct intermediation/syndication agreements, which enable website publishers to place Google services on their web pages, CCI has observed that Google offers two types of AdSense programs — search intermediation which enables web publishers to place Google search bar on their websites and ad intermediation which enables publishers to show Google ads on their websites, both search ads (AFS — AdSense for Search) and display ads (AFC — AdSense for Content). In direct ad intermediation, no contravention was found; however, in direct search intermediation, the restriction placed by Google on inclusion of any substantially similar search bar by web publishers on their websites has been found to be violative of the law. However, the minority, on this count too, has dissented and observed that since such restriction is not available in the online search intermediation agreements entered into by Google which are openly available to all web publishers, but is only put in the directly negotiated search intermediation agreements, the choice of the web publishers (consumers) is not forcefully restricted but rather such restriction is accepted at will. Further, since no independent “search intermediation/syndication services” market has been analysed, the finding given by the majority seems a bit presumptive.

Hence, as per the minority, no case of contravention by Google on any issue, is made out. However, the majority, taking Google’s revenue from its India operations into account, has imposed a penalty @ 5% of its average turnover, amounting to Rs 135.86 crores upon Google. Google, being an intricate part of every internet user’s life, this decision[2] of CCI is bound to have a wide impact. Since the matter involves high stakes, it is likely to go in appeal as well, may be even from both sides. However, as for now, CCI, vide this order, has shown exemplary understanding of the technical issues at hand, and yet again proven its balanced judicial prudence.

[1] Matrimony.com Ltd. v. Google LLC, 2018 SCC OnLine CCI 1.

[2] Ibid.

Case BriefsForeign Courts

Federal Court of Justice: As reported by Reuters, the Germanys’ highest court while addressing an appeal upheld a lower court ruling which stipulates that Google is not required to pre-screen websites for defamation before displaying them in search results.

The verdict came after a German couple brought a case against Google, seeking the “Right to be Forgotten” [in 2014, the European Court of Justice (ECJ) ruled that individuals can request search engines to remove inadequate/irrelevant information from web results appearing under searches for their names] arguing that the US-based internet giant should be responsible for blocking links to websites to prevent its search engine from displaying such sites on which they were defamed, and that it should set up search filters to keep those websites from appearing in future search results.

The German Federal Court of Justice observed that Google doesn’t have to ensure that you only see kind words, and while general filters for clearly illegal content can be set up, the sheer volume of content added to the internet every day would make it utterly impractical to guarantee that every search result honors the law, and further observed that without the help of such search engines it would be impossible for individuals to get meaningful use out of the internet due to the unmanageable flood of data it contains, and that instituting a general duty to inspect the content would seriously call into question the business model of search engines, which is approved by lawmakers and wanted by society.

The Presiding Judge Gregor Galke, ruled on that “a general responsibility to regulate is incompatible with the function of search engines,” adding that forcing Google and others to check every link would practically paralyze the service.

The Court, further held that Google was supposed to act on links where users have reported “concrete evidence” of violations of law, such as child pornography or acts of violence. Though under the German law, social media websites are obliged to remove offensive content within 24 hours of notification, this ruling makes it clear that this right doesn’t extend to people hurling verbal abuse, and certainly doesn’t cover preemptive screening.

The German court, however, recognized the practical impossibility of a ruling in favour of the aggrieved couple and thus held that Google can’t be responsible for trawling through contents, before it appeared on the search engine and hence a duty to take action is triggered only on being notified of a ‘clearly recognizable violation’ of individual rights.

According to Googles’ transparency report, it has received requests for the removal of more than 2.4 million links and complied with about 43 percent of them.

[Source: Reuters]

Case BriefsTribunals/Commissions/Regulatory Bodies

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]

Case BriefsHigh Courts

Gujarat High Court:A petition was filed under Article 226 of the Constitution praying to obtain a suitable writ for restraining the free public exhibition of the judgments and orders of the Court over internet by Google even if the cases are non-reportable. He pleaded that because of publication by the respondents the judgment is exhibited for free in public domain and is therefore, against the classification made by the Court.

It was also alleged that such an overzealous act of respondents is not just undisciplined and without authority, but also has had an adverse impact on personal and professional life of petitioner. The petitioner was accused in the impugned case that was published. Counsel for respondents simply pleaded that it was neither a proper nor a necessary party in the case as Google, being an automated search engine uses software known as ‘crawlers’ which would crawl the internet and find sites to add to its index and therefore, they were in no way connected to the publication on internet.

The Court observed that there are no specific provisions pointed out by the petitioner which have been violated by publication of the impugned judgment and as prayed by petitioner, it would not be covered under the ambit of Article 21 of the Constitution. It was clarified by the Court that reportable or non-reportable is the classification made for the reporting of a judgment in law-reporter and not its publication anywhere else while taking into consideration the important fact that High Court was a court of record. [Dharamraj Bhanushankar Dave v. State of Gujarat, 2015 SCC OnLine Guj 2019, decided on 19-01-2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Competition watchdog ordered to close a case filed against Facebook, Google and some online portals (“opposite parties”) for alleged abuse of dominant position and anti-competitive conducts. The informant in this case was aggrieved by complaints filed on online electronic public fora by persons with whom the informant has ongoing disputes. Informant alleged that these persons had also published defamatory material against the Informant on online platforms such as Google and Facebook. The Informant has also claimed that because of the wide outreach of these websites publication of false/ defamatory statements/ adverse remarks have tarnished its reputation and it has suffered reputational and monetary damage. Informant contended that Facebook and Google enjoy dominant position on the internet as the information contained in these websites can be viewed worldwide and hence they have violated the provisions of section 4 of the Competition Act, 2002.

The CCI observed that the Informant failed to make out a case against Facebook and Google for abuse of dominance under the provisions of section 4 of the Act. CCI closed the case with the view that the general averments made by the Informant against the opposite parties including publication of defamatory materials on certain websites allegedly maligning the Informant’s reputation, do not raise any competition concern. [In Re: Taj Pharmaceuticals Ltd and Facebook , [2015] CCI 158, decided on 07.10.2015]