Legal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Appellate Tribunal for Electricity (APTEL)


State commission disallows benefit of increase in the tariff based on the change in law provision; Tribunal directs reconsideration

A Coram of R.K. Gauba (Officiating Chairperson) and Sandesh Kumar Sharma (Technical Member) decided on an appeal which was filed by Solar Power Project Developer (“SPD”) assailing order passed by respondent Bihar Electricity Regulatory Commission (“the State Commission”) disallowing the benefit of increase in the tariff based on the change in law provision with respect to increased Operation and Maintenance (O&M) costs of its 10MW solar power generating system.

Read full report here…


Armed Forces Tribunal (AFT)


AFT grants war injury pension to soldier who sustained injuries resulting in disability during Operation Hifazat

The Bench of Justice Dharam Chand Chaudhary (Member J) and Vice Admiral HCS Bisht (Member A), granted war injury pension to the ex-serviceman who had sustained injuries resulting in disability during Operation Hifazat.

Read full report here…


Arbitral Tribunal, New Delhi


Arbitral Tribunal finds SJDA at fault; directs to refund bid amount of Rs 84.24 crores to the claimant in New Township Project

“No permission for conversion of land was obtained and, therefore, even if all other conditions were fulfilled, the Claimant-Developer could not have commenced construction activities on the agricultural lands without obtaining conversion of land use.”

Read full report here…


 Competition Commission of India (CCI)


Apple charging a commission of up to 30% on all payments made through its in-app purchase system, is a violation of its dominant position? CCI orders investigation 

“Some consumers may have preference for closed ecosystem like Apple and others may have a preference for open ecosystems like that of Google.” 

Read full report here… 

Why did CCI suspend the Amazon-Future deal? Detailed analysis of CCI order imposing Rs 202 crores penalty on Amazon

“Amazon had misled the Commission to believe, through false statements and material omissions, that the Combination and its purpose were the interest of Amazon in the business of FCPL.”

Read full report here…

Is Google abusing dominant position in news aggregation? CCI gives prima facie findings; discusses Snippets, Mirror Image Websites, Paywall Options, etc.

“Google appears to operate as a gateway between various news publishers on the one hand and news readers on the other. Another alternative for the news publisher is to forgo the traffic generated by Google for them, which would be unfavourable to their revenue generation.”

Read full report here…


 Customs Excise & Service Tax Appellate Tribunal (CESTAT)


“Obiter dictum” not legally binding as precedent; jurisdictional commissioner cautioned for filing frivolous applications

Suvendu Kumar Pati (Judicial Member) dismissed an appeal which was filed in response to the order passed by this Tribunal for rectification of mistake on the ground that the order to the extent of availment of service of outdoor catering was not proper.

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Jurisdiction for claim of refund filed/initiated to be dealt under the provision Central Excise law and not by the provision of CGST law

Ashok Jindal (Judicial Member) dismissed the application filed by the Revenue (CCE & ST, Panchkula) for ratification of mistake in a final order by the Tribunal which was noticed by the Applicant. The Tribunal dealt with two issues (a) whether to ratify previous order & (b) to deal with the jurisdiction

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Is there any provision under Cenvat Credit Rules, 2004 or Finance Act, 1994 for reversal of CENVAT credit for services provided for which no consideration is received by an assessee? CESTAT analyses

“CENVAT Credit Rules or Finance Act there was no provision for reversal of CENVAT credit for the services provided for which no consideration for service provided was received by an assessee.”

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District Consumer Disputes Redressal Commission, Kolkata


Consumer cannot be forced to pay “service charge” in a restaurant: Consumer Forum finds conduct of restaurant contrary to principles of Consumer Protection Act

“The OPs must have been aware of the guidelines of Fair Trade Practice related to changing of service charge from the consumers by hotels/restaurant issued by Department of Consumer Affairs, Government of India, inter alia, stipulating that service charge on hotel and restaurant bill is “totally voluntarily” and not mandatory.”

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Income Tax Appellate Tribunal (ITAT)


If lessee is not actual owner of property, can actual rental expenses be claimed on return of income? ITAT decides

“The assessee-company has merely taken the assets on lease from the owner, and it is accordingly eligible to claim actual rental expenses in the return of income.”

Read full report here… 

Can merely disowning bank accounts exempt assessee from paying tax? Read why ITAT approved addition of Rs 12.81 Crores under S.68 of Income Tax Act

“Merely disowning the bank accounts by the assessee does not lead to the conclusion that the accounts are not maintained by him when there is a direct evidence contrary to the contention of the assessee.”

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 National Consumer Disputes Redressal Commission (NCDRC)


Homebuyers cannot be expected to wait indefinitely for taking possession: NCDRC allows consumer complaint against Builder, directs refund, imposes costs

Commission dealt with a complaint filed under Section 21 read with Section 2(c) of the Consumer Protection Act, 1986 by the complainant in respect of a plot allotted to him promoted by the OP, claiming deficiency of service due to delay in handing over possession of the plot allotted and claiming refund of amount deposited with compensation.

Read full report here… 

Insurer refuses to issue insurance policy as Risk Confirmation letter obtained on concealment of material fact by Insurance Broker: Policy will be vitiated? NCDRC answers

“Section 19 of Contract Act, 1872, provides that when the consent of an agreement is caused by coercion, fraud, or misrepresentation, the agreement is voidable at the option of the party whose consent is so caused.”

Read full report here…

Plastic pieces found in slices of bread, but compensation denied to consumer. Read why NCDRC set aside State Commission’s order of compensation

Ram Surat Maurya (Presiding Member) addressed a matter wherein Britannia was alleged to have pieces of plastic in its bread, but the complainant failed to prove that the bread was manufactured by the said company.

Read full report here…

Minor treated for “Measles” instead of “Stevens-Johnson Syndrome” due to wrong diagnosis and leading to medical negligence: Read detailed report on NCDRC’s decision

“The patient at her young age of 12 years suffered very serious and potentially fatal SJ syndrome. It was the patient’s sheer good luck that she survived in spite of such grossly inappropriate/inadequate treatment at every stage.”

Read full report here…


National Company Law Appellate Tribunal (NCLAT) 


Is it proper for NCLT to record finding regarding default when RP is yet to consider it and submit report? NCLAT discusses Ss. 95, 97, 99 IBC

“…there cannot be any dispute with the statutory scheme as contained in Section 97 that when application is filed by the Resolution Professional under Section 95, the Adjudicating Authority shall direct the Board within seven days of the date of the application to confirm that disciplinary proceedings pending against the Resolution Professional or not and the Board was required within seven days to communicate in writing either confirming the appointment of the Resolution Professional or rejecting the appointment of the Resolution Professional and nominating another Resolution Professional.” 

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Aggrieved with the categorisation as ‘unsecured creditor’, Tribunal secures ‘secured creditor’, having relinquished the security interest

The Coram of Ashok Bhushan J, (Chairperson), and Dr Alok Srivastava (Technical Member) while accepting the appeal and rejecting the claim of the respondent, the Tribunal was of the opinion that the Adjudicating Authority committed an error in rejecting the claim of the appellant to be ‘secured creditor’.

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Is approval with 90% vote of CoC required before allowing withdrawal of CIRP application even where CoC was not yet constituted? NCLAT clarifies law on S. 12-A IBC 

“…when the application is filed prior to the constitution of Committee of Creditors, the requirement of ninety percent vote of Committee of Creditors is not applicable and the Adjudicating Authority has to consider the Application without requiring approval by ninety percent vote of the Committee of Creditors.”

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Dominant position and Predatory Pricing or Win-Win for riders and drivers? NCLAT upholds CCI’s decision

“We do not think that Ola could operate independently of other competitors in the relevant market, and hence it did not enjoy a dominant position in the market.”

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Once Adjudicating Authority approves Resolution Plan, does it still remains a confidential document? Read what NCLAT says

“The category of creditors including the Members of the suspended Board of Directors or the partners of the corporate persons, who are entitled to participate in the meeting of the Committee of Creditors are entitled to receive copies of all documents.”

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 National Green Tribunal (NGT)


Rampant noise pollution, incessant use of horns; a Deplorable state of affairs! NGT finds Rajasthan in contempt of Supreme Court’s order 

While addressing the issue of pressure/air horns and motor vehicles being driven with intolerable sound in Rajasthan, the Bench comprising of Justice Sheo Kumar Singh (Judicial Member) and Dr. Arun Kumar Verma (Expert Member) found the State of Rajasthan in contempt of the Supreme Court’s order and issued notice to the state government to reply within three weeks.

Read full report here…


Securities Exchange Board of India (SEBI)


Twitter, Telegram and the tattered chances-Illicit act of swindlers recommending stock tips on social media; Tribunal acts immediately

“The tips circulated through the Channel create an inducing impact which are then followed by the subscribers and ironically, such stock tips may also prove to be true, if large number of recipients of such tips believe it and collectively act on it. Slowly and gradually, after seeing the price of the said thinly traded scrip actually rising, more and more subscribers start believing in the tips and start acting on it, which further strengthens the belief of such tips being genuine, as large number of individuals end up acting on such tips and by their collective buying actions, convert the deceitful, specious and baseless tips to realty”

Read full report here…

‘Billionaire’ dream turns into dread-Unauthorsied investment advisory amounted to fraud & misrepresentation

S.K. Mohanty, Whole Time Member while affirming an ex-parte interim order of SEBI, was of the view that the activities of the Noticees, Billionaire Solutions Pvt. Ltd. (Sole proprietor Akash Jaiswal) was covered within the definition of “fraud” defined under regulation 2(1)(c) of the PFUTP Regulations, 2003. And therefore was held liable for the violation of provisions of Section 12A (a), (b), (c) of the SEBI Act, 1992, Regulations 3 (b), (c) & (d), 4(1), 4(2)(k) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (PFUTP Regulations, 2003).

Read full report here…

Experts CornerSanjay Vashishtha

Today, the world is plainly under the grasps of social media. The foundation of an individual is evaluated on the anvil of his/her presence at the virtual world. Google has become synonymous to “search” and it is perhaps the virtual world that decides the credibility of an individual or an institution alike.

 

The unparalleled growth of information and technology had made us privy to the most intricate details of human lives – both good and bad. The boundaries of privacy are blurring more than ever. We enjoy the latest controversies with a cup of tea but have we ever thought what would things be like if we were placed in their shoes? Think of the most embarrassing thing you have ever done, now conjure a reality where everybody in the world knows about it, it is tough, right?

 

At a point in time, where artificial intelligence has advanced to the point of retaining and interpreting data, study behavioural patterns and automate human responses, we need to think about the kind of huge impact our digital footprint has on the web.

 

The personal information of an individual at this point not confined to just papers, official and government records. It can now be easily assessed by an individual from anywhere around the world through web or search engines. This incomparable change in both the nature and the expanse of personal information accessible online is an underlining issue. An individual need not be grounded or an overachiever to be in the list items of Google or any other search engine for that matter.

 

Background

In 1998, Mario Costeja González, a Spaniard, had run into financial difficulties and was in severe need of funds. As a result, he advertised a property for auction in the newspaper, and the advertisement ended up on the internet by chance. Mr Gonzáles, unfortunately, was not forgotten by the internet. As a result, news about the sale was searchable on Google long after he had fixed his financial issue, and everyone looking him up assumed he was bankrupt. Understandably, this resulted in severe damage to his reputation, prompting him to take up the matter to the court. Ultimately, this case gave birth to the concept of the “right to be forgotten”.

The European Court of Justice ruled against the search engine giant Google, declaring that under certain circumstances, European Union residents could have personal information removed or deleted from search results and public records databases.[1]

 

However, in 2019 the EU Court restricted the ruling only to the European Union, saying Google does not have to apply the “right to be forgotten outside Europe”.

 

The concept of the right to be forgotten, also known as the right to erasure, is that individuals have a civil right to have their personal information removed from the internet. Likewise, a traceable procedure must be in place to ensure that removed data is also erased from backup storage media.

 

India, at present does not have any statutory provision that provides for right to be forgotten (RTBF). The Indian security system has seen an alternate wave with the presentation of the new Personal Data Protection Bill (PDP Bill)[2] in 2018. The Bill envisage many changes with respect to data handling and security privileges of an individual.

 

However, the Bill guises to fetch in the right to be forgotten which is not accessible in the current legitimate system under the Information Technology Act, 2000 and Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

 

In simple terms, the “right to be forgotten” is the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant.

 

However, there is an intricate system envisaged under the Section 20 of PDP Bill for setting off the right to be forgotten. The Bill articulates that the right can be sanctioned only on the order of an adjudicating officer after an application recorded by the data principal. Whereas, the choice on whether the right to be forgotten can be granted with respect to any information will rely upon “the right to the right to freedom of speech and expression and the right to information of some other citizen”.

 

Keeping in view the laws of other countries, the European Union’s (EU) General Data Protection Regulation (GDPR) permit individuals to have their personal data erased, but the authorities noted that “organisations do not always have to do it”.

 

The GDPR provisions read like a master for the Indian PDP Bill and it further expresses that an individual can look for the eradication of their information when “there are serious inaccuracies in the data or they believe information is being retained unnecessarily, they no longer consent to processing”.

 

Furthermore, EU noticed that the right to be forgotten is “not an absolute right”. Consequently, in situations where the information is being utilised to practise the right to freedom and expression or for consenting to a lawful decision or commitment, an appeal for eradication may not be engaged. Additionally, where public interest is included or when an association is utilising information while practicing its authority, it can refuse to delete any information that it considers to be significant for its purposes.

 

Today, at this point it is not simple to get away from one’s past when one’s personal information can be easily circulated around the web or stay on the internet endlessly, accessible through speedy search results. For people who wish to start afresh, the right to be forgotten remains essentially important and all the more necessary given the expand of our digital footprint. The essential query that encompasses the commencement and nature of the right to be forgotten is: would it be a good idea for us to reserve the right to be forgotten?

 

In India, the first question previously came up before the judiciary in Dharamraj Bhanushankar Dave v. State of Gujarat[3], before the Gujarat High Court. In its judgment the court did not acknowledge the so-called “right to be forgotten”. Here, in this case the petitioner had been charged with criminal conspiracy, murder, and kidnapping, among others and was acquitted by the Sessions Court, which was further supported by a Division Bench of the Gujarat High Court. The petitioner had claimed that since the judgment was non-reportable, respondent should be banned from publishing it on the internet because it would jeopardise the petitioner’s personal and professional life. The High Court, on the other hand, found that such publication did not violate Article 21 of the Indian Constitution, and that the petitioner had presented no legal basis to prevent the respondents from publishing the judgment.

 

Subsequently, In V. v. High Court of Karnataka[4], , the Karnataka High Court recognised right to be forgotten. The purpose of this case was to remove the name of the petitioner’s daughter from the cause title since it was easily accessible and defame her reputation. The court held in favour of the petitioner and ordered that the name of the petitioner’s daughter to be removed from the cause title and the orders. The court held that “this would be consistent with the trend in western countries, where the ‘right to be forgotten’ is applied as a rule in sensitive cases concerning women in general, as well as particularly sensitive cases involving rape or harming the modesty and reputation of the individual concerned”.

 

Noticeably, the right to be forgotten has now been perceived as a basic face of the right to privacy.

 

Furthermore, in the landmark case of K.S. Puttaswamy v. Union of India[5], the Supreme Court recognised the right to be forgotten as part of the right to life under Article 21.

 

The Supreme Court had stated that the right to be forgotten was subject to certain restrictions, and that it could not be used if the material in question was required for the—

  1. exercise of the right to freedom of expression and information;
  2. fulfilment of legal responsibilities;
  3. execution of a duty in the public interest or public health;
  4. protection of information in the public interest;
  5. for the purpose of scientific or historical study, or for statistical purposes; or
  6. the establishment, executing, or defending of legal claims.

 

Recently, a Single Judge Bench of the Madras High Court headed by Mr Justice N. Anand Venkatesh, had given an important order regarding “right to be forgotten” (RTBF) or right to erasure as a facet of the fundamental “right to privacy”.

 

In this case, the petitioner’s name continued to appear in the High Court’s verdict and was freely available to anyone who would type their name into Google search. Despite the fact that the petitioner was acquitted, they were named as an accused throughout the preceding judgment. Therefore, the petitioner contends that this has a negative influence on his public image. As a result, the petitioner requests the High Court to issue an order redacting their name from the verdict.

The Madras High Court ruled that the “right to be forgotten” cannot exist in the administration of justice, especially when it comes to court judgments.

 

“Right to be forgotten does not exist in case of court judgments, rules Madras HC”

It is innocuous to conclude that RTBF is still in its preliminary stage in India. To effectively enforce this right in India, the following should be proposed:

  1. A robust data protection law would go a long way in effectively imbibing this right in every citizen. RTBF can be restructured to further help in protecting the privacy of individuals.

The current events show just how much this Bill needs to be enacted into an act. The need of the hour is to protect people against attacks through digital platforms. Additionally, a clause that clarifies different situations with certain outcomes is also essential, so as not to give rise to any potential conflict between the two fundamental rights.

  1. Even though the PDP Bill has not been implemented, several courts have recognised the RTBF in their judgments, keeping international jurisprudence in mind. Whilst the Delhi and Karnataka High Court have recognised the right and judicially enforced it, there is still a long way for a systematic method which effectively safeguards RTBF in a way that right to information and right to freedom of speech and expression are not violated. Filing a petition for defamation to invoke their fundamental right to privacy can be used in the meantime.
  2. Lastly, search engines and major digital platforms can alter their policies and determine the eradication of personal data through de linking. However, big giants like Google have continued to retain certain information even when taken to court by a petitioner in Kerala HC. This goes to show that this method is the least effective way to enforce the right.

 

However, applying the three cumulatively and in a systemic manner could help to properly establish and implement RTBF in India.

Lastly, it would be interesting to note the development of right to be forgotten in other jurisdictions.

 

Comparative analysis of the concept of right to be forgotten

 

European Union (EU)

The concept of the right to be forgotten has elicited conflicting reactions from various jurisdictions around the globe. The EU, in particular, has seen rapid development. The European Union (EU) – several maneuvers have been made in the European Union to consolidate the right to be forgotten. The Data Protection Directive was a European Union directive passed in 1995 to govern the exemption of personal data within the EU. It is a crucial part of EU privacy and human rights law. Following that, in April 2016, the General Data Protection Regulation (GDPR) was enacted, superseding the Data Protection Directive, 1995.

 

In accordance with Article 17 which states that the data subject has the right to request the erasure of personal data relating to them on a variety of grounds, including non-conformity with Article 6(1) (lawfulness), which includes a case if the controller’s sincere interests are overshadowed by the data subject’s interests or fundamental rights and freedoms, which require the protection of personal data. As a result, GDPR Article 17 has defined the situations in which European Union citizens can exercise their right to be forgotten or erasure.

 

The article gives citizens of the European Union the right to have their personal data erased under six conditions, including the withdrawal of consent to use data or the data no longer being relevant for the purpose for which it was gathered. However, the request may be denied in certain circumstances, such as when it contradicts the right to free expression and information, or when it is conflicting to public interest in the areas of public health, scientific or historical research, or statistical drives. As a result, Article 17 of the GDPR of 2016 includes a specific protection in the right to be forgotten.

 

When a member of the public requests for the erasure of the information, the European Court of Justice in Google Spain SL v. Agencia Española de Protección de Datos[6] ordered Google to delete “inadequate, irrelevant, or no longer relevant” material from its search results. The judgment, dubbed the “right to be forgotten” by the public, was crucial in enforcing the EU’s data protection laws and regulations, particularly the EU’s General Data Protection Regulation.

 

Mario Costeja González, a Spaniard, was dissatisfied when a Google search for his name turned up a newspaper article from 1998. Gonzalez approached the newspaper in 2009 to have the article removed, but the newspaper refused, so González went to Google to have the article removed when his name is searched.

 

To exercise one’s right to be forgotten and have one’s information removed from a search engine, fill out a form on the search engine’s website.

 

Google’s removal request process requires the applicant to identify their country of residence, provide personal information, provide a list of URLs to be removed along with a brief description of each one, and attach legal identification. The form allows users to enter the name for which they want search results to be removed. If a search engine refuses to delink material, EU citizens can file an appeal with their local data protection agency.

 

Google may face legal action if it objects to a data protection agency decision. The European Union has requested that Google implement delinking requests from EU citizens across all international domains.

 

United States (US)

The United States of America has an evolved general set of laws that defends its residents’ protection. The State of New York was quick to acquaint a draft “right to be forgotten” Bill A05323 in its State Assembly, named “An act to amend the civil rights law and the civil practice law and rules, in relation to creating the right to be forgotten act.” Moreover, in March 2017, New York State representative Tony Avella and assemblyman David Weprin introduced legislation that would permit people to require web search tools and online speakers to eliminate data that is “inaccurate,” “irrelevant,” “inadequate,” or “excessive,” that is “no longer material to current public debate or discourse,” and that is causing evident harm to the subject.

 

The Bill was written mainly along the lines of the European Court of Justice’s decision in Google Spain SL v. Agencia Española de Protección de Datos[7].

 

Two significant cases to be specific Melvin v. Reid[8] and Sidis v. FR Publishing Corpn.[9] are somewhat pertinent. The court contemplated, “Any individual who leads a moral life has the option to joy, which remembers the independence from unmerited assaults for his character, social standing, or notoriety.” While the plaintiff in the case, William James Sidis, was a former child prodigy who wish to spend his adult life discreetly and undetected, subsequently, an article in The New Yorker disrupted this. In this case, the court resolute that the option to control one’s own life and realities about oneself has limits, that there is social worth in distributed realities, and that an individual cannot overlook their celebrity status basically in light of the fact that they need to.” Despite these slow developments, the prospects of a federal law or a constitutional amendment providing for a standalone. Right to be forgotten in the United States are very faint, particularly regardless of the solid resistance in light of the fact that it is conflicting with the first amendment to the United States Constitution, which ensures freedom of speech and expression. Thus, it is contended, the right will viably bring about another type of restriction.

 

These criticisms, however, are consistent with the proposal that the only information that can be removed at the user’s request is content that the user has uploaded.


Sanjay Vashishtha is a practicing counsel at the Supreme Court of India, LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford. He is serving as a counsel/special counsel and consultant for several law enforcement and public sector institutions.

[1] C-507/17, Google LLC, successor in law to Google Inc., v Commission nationale de l’informatique et des libertés (CNIL) can be accessed HERE

[2] Personal Data Protection Bill accessible Here

[3] 2017 SCC OnLine Guj 2493.

[4] 2017 SCC OnLine Kar 424.

[5] (2019) 1 SCC 1.

[6] Case C‑131/12, decided on 13-5-2014.

[7] Case C‑131/12, decided on 13-5-2014.

[8] 112 Cal App 285: 297 P 91 (1931).

[9] 85 L Ed 462 : 61 S Ct 393 : 311 US 711 (1940).

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): On finding merit in allegations of news publishers’ Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) expressed that,

Google appears to operate as a gateway between various news publishers on the one hand and news readers on the other. Another alternative for the news publisher is to forgo the traffic generated by Google for them, which would be unfavourable to their revenue generation.

Digital News Publishers Association (Informant) filed the present information under Section 19(1)(a) of the Competition Act, 2002 against Alphabet Inc., Google LLC, Google India Private Limited and Google Ireland Limited (referred to as ‘Google’/OPs’) alleging violation of Section 4 of the Competition Act.

Trajectory of the Facts

Informant averred that its members have endeavored to provide credible and fact-checked news, which is the bedrock of any democracy.

Further, as per the Informant, the majority of the traffic on news websites comes from online search engines (more than 50%), wherein Google is claimed to be the most dominant search engine. Based on the same, the Informant averred that more than 50% of the total traffic on the news websites is routed through Google and, being the dominant player in this field, Google, by way of its algorithms, determines which news website gets discovered via search.

Informant contended that Google not only has a monopolistic position in search in India, it has also a very strong position in advertising intermediation and controls/retains the major share at each level.

Adding to the above facts, informant stated that Google was the major stakeholder in the digital advertising space, and it unilaterally decides the amount to be paid to the publishers for the content created by them, as well as the terms on which the aforesaid amounts have to be paid.

The dependency of the customer on Google is also stated to be a well-known fact.

Hence, the OPs abused their dominant position in the market and violated provisions of Section 4 of the Competition Act, 2002.

Analysis and Discussion

The essence of the allegations noted by the Commission was the impugned conduct of Google, resulting in denial of fair share in the digital advertising revenue to news publishers and disclosure of inadequate information to reach a fair settlement.

Further, digitalization of the economy has resulted in higher spending on digital advertising, increasing the dependence of the news publishers on digital advertising.

It was noted that the informant was aggrieved by the denial of fair advertising revenue to its members resulting from the abuse of its dominant position by Google.

Commission in Google Search Bias case held that Google is dominant in both relevant markets, i.e., market for online general web search services and market for online search advertising services in India.

In relation to the dependence of news publishers on Google, it was averred that Google’s search engine results were a prominent source of online traffic to news website publishers. The said fact was corroborated from the traffic data accessed from similarweb.com, which indicated that search engines generate 25% to 77% (depending on the publisher) of the total traffic to news publisher websites. Hence, the discoverability for news publishers appeared to be dependent on search results from Google.

Commission prima facie opined that Google was dominant in both the relevant markets, i.e. market for online general web search services and market for online search advertising services in India.

Coram noted that Google displays news content (a) on its search engine page(s) in the form of general/organic search results, i.e., Google Search, as well as through (b) its news aggregator vertical, i.e., Google News. In response to a search query related to news items, in addition to organic results, Google also displays a ‘Top Stories’ carousel on its search engine result page.

Further, Google provides a news tab on Google Search, which groups news articles related to the search query. The news tab displays the title of the news article, an excerpt from the article, the thumbnail as well as the publisher’s name.

Google displays news content in a variety of ways through hyperlinks, thumbnails, extracts, etc. These hyperlinks, when clicked, take the users to the websites of the respective news publishers. Such access by the users allows the news publishers to monetize their content by offering advertising space on their websites to potential advertisers. 

The Commission stated that it cannot deny that by virtue of its position of strength of its vertically integrated ecosystem which covers not only the markets of Online General Web Search Services and Online Search Advertising Services but also the online digital advertising intermediation services, Google appears to be a preferred service provider to publishers wanting to offer search and advertising services on their websites.

Further, the Coram prima facie was satisfied that based on the global presence of Google, it can be reasonably inferred that Google occupies a significant position in the market for online digital advertising intermediation services as well and investigation would bring out the said aspects in detail.

What appears from the above trajectory?

It appeared that the news publishers are dependent on Google for the majority of the traffic, which makes Google an indispensable trading partner for news publishers.

Prima facie, it appeared that news publishers have no choice but to accept the terms and conditions imposed by Google.

Google appears to operate as a gateway between various news publishers on the one hand and news readers on the other. Another alternative for the news publisher is to forgo the traffic generated by Google for them, which would be unfavourable to their revenue generation.

The alleged opacity on critical aspects such as data and audience management practices, or generation and sharing of revenue with publishers, exacerbates the information asymmetry and is prima facie prejudicial to the interest of publishers, which, in turn, may affect the quality of their services and innovation, to consumer detriment.

Hence, the imposition of such unfair conditions as well as price by Google in the provisions of its various services was prima facie violation of Section 4(2)(a) of the Act.

Snippets on Google

It needs to be examined whether the use of snippets by Google is a result of the bargaining power imbalance between Google on the one hand and news publishers on the other, and whether it affects the referral traffic to news publisher websites, and thus, their monetization abilities.

Coram expressed that in a well-functioning democracy, the critical role played by news media cannot be undermined, and it needs to be ensured that digital gatekeeper firms do not abuse their dominant position to harm the competitive process of determining a fair distribution of revenue amongst all stakeholders.

Therefore, the alleged conduct of Google appeared to be an imposition of unfair conditions and price which prima facie was a violation of Section 4(2)(a) of the Act.

Mirror image websites

The alleged issue with regard to publishers being forced to build mirror-image websites using the AMP format, with Google caching all articles and serving the content directly to mobile users, can have revenue implications for the publishers.

Paywall Options

Since Google restricts paywall options unless publishers rebuild their paywall options and their meters for AMP, which may amount to an unfair imposition on publishers, the said aspects would be suitably examined during the investigation.

Further, it also needs to be examined whether Google imposes any discriminatory condition or price on various news publishers, which would violate Section 4(2)(a) of the Act.

Therefore, in Commission’s opinion, prima facie, Google violated the provisions of Section 4(2)(a) of the Act, which merits investigation and the informant also alleged that Google’s conduct has also violated the provisions of Section 4(2)(b)(ii) as well as Section 4(2)(c) of the Act.

DG can appropriately examine the above-stated.

Google using its dominant position in the relevant markets to enter/protect its position in the market for news aggregation services in violation of Section 4(2)(e) of the Act also needs detailed investigation.

Commission took note of the development in some countries such as France and Australia, as referred by the Informant, that Google has been asked to enter into fair/ good faith negotiation with news publishers for paid licensing of content to address the bargaining power imbalance between the two and the resultant imposition of unfair conditions by Google.

Therefore, Commission was satisfied that a prima facie case was made out against the alleged conduct of Google, which merits an investigation. [Digital News Publishers Assn. v. Alphabet Inc., 2022 SCC OnLine CCI 1, decided on 7-1-2022]

Legislation UpdatesStatutes/Bills/Ordinances

The Parliamentary Committee of South Korea has approved a bill, Partial amendment to the Telecommunications Business Act (alternative) (Chairman of Science and Technology Information Broadcasting and Communication), on August 31, 2021.

 

Key highlights of the Bill are:

  • The Bill shall ban major app store operators like Google and Apple, from requiring developers to only use their payment systems to process the sale of digital products and services.
  • The Bill is intended to promote fair competition among participants in the app market industry by barring them.
  • The policies of Apple and Google policies usually require developers to pay the tech giants a commission as high as 30% of every transaction. Now, as per the current Bill approved by the Parliament, the developers will be able to avoid paying commission to major app store operators like Google and Apple by directing users to pay via alternate platforms.
  • The law also gives the South Korean government the power to mediate disputes regarding payment, cancellations and refunds in the app market.

The Bill awaits Presidential assent. Once passed, South Korea will be the first country to take a legislative action in curbing the Apple and Google’s app store charges.


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) ordered an investigation by the Director-General against Google in view of prima facie contravention of provisions of Competition Act.

Informants filed the instant case under Section 19(1)(a) of the Competition Act against Google LLC, Google India Private Limited, Xiaomi Technology India Pvt. Ltd. & TCL India Holdings Pvt. Ltd. alleging contravention of various provisions of Sections 3 and 4 of the Act. OPs to be referred to as ‘Google’.

Informants stated that they were the consumers of Android-based smartphones, television devices and alleged that Google was guilty of anti-competitive practices which violate Section 4 with Section 32 of the Act.

It was alleged that Google imposed several restrictions, as summarized below, upon smart TV and smart mobile device OEMs by virtue of the agreements entered into with them which tantamount to abuse of its dominant position by Google, in terms of various provisions of Section 4 of the Act.

Analysis

It was noted that Google enters into two agreements with Android TV licensees i.e. Television App Distribution Agreement (TADA) and Android Compatibility Commitment (ACC).

Google makes AOSP available to any third parties under an open-source license, however, the Android Open Source Project license does not grant OEMs, the right to distribute Google’s proprietary apps such as Play Store, YouTube, etc. referred to as Google Applications in TADA. The AOSP license further does not grant Original Equipment Manufacturers (OEMs), the right to use the Android logo and other Android-related trademarks. In order to obtain those rights, Google requires OEMs to sign an optional, non-exclusive agreement, i.e. TADA. Further, TADA requires the OEMs to be in compliance with a valid and effective ACC.

Commission prima facie opined that by making pre-installation of Google’s proprietary apps conditional upon signing of ACC for all android devices manufactured/distributed/marketed by device manufacturers, Google has reduced the ability and incentive of device manufacturers to develop and sell devices operating on alternative versions of Android and thereby limited technical or scientific development relating to goods or services to the prejudice of consumers in contravention of Section 4(2)(b) of the Act.

ACC prevents OEMs from manufacturing/ distributing/ selling any other device which operates on a competing forked Android operating system.

Therefore, the dominance of Google in the relevant markets and pronounced network effects, by virtue of the stated restriction, developers of such forked Android operating system are denied market access resulting in violation of Section 4(2)(c) of the Act.

Further, Commission prima facie opined that obligations which appear to be applicable across all the devices manufactured by OEMs are akin to making a conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts and thus, violative of provisions of Section 4(2)(d) of the Act.

In relation to the mandatory preinstallation of all the Google Applications under TADA, it is observed that the device manufacturers who sign this agreement cannot pick and choose from the Google Applications for preinstallation. In essence, this entails compulsory tying of ‘must have’ Google apps, which is in contravention of Section 4(2)(a)(i) of the Act.

Elaborating more on the above aspect, Commission stated that Google prima facie leveraged dominance in Play Store in contravention of Section 4(2)(e) of the Act.

Commission directed the Director-General (‘DG’) to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act and the same to be completed within a period of 60 days.

As per the Coram, a case was made out for directing an investigation by the DG.[Kshitiz Arya v. Google LLC, 2021 SCC OnLine CCI 33, decided on 22-06-2021]

Hot Off The PressNews

In Common Pleas Court Delaware County, Ohio Civil Division, State of Ohio filed a suit against Google.

Following is a summary of pleadings advanced by the State of Ohio in its suit against Google LLC:

Plaintiff, the State of Ohio has brought action seeking declaratory and injunctive relief against Google LLC.

In lieu of charging a fee, Google collects user data, which is monetized in various ways – primarily via selling targeted advertisements.

Virtuous Cycle

Google Search came to dominate the market. Because Google Search is the most used search engine, its algorithms are the most refined and is perceived to generate the most relevant results. Thus, Google’s dominant market position allows it to continue to refine its search algorithms to render Google with a competitive advantage over other search engines, leading to more market dominance by Google Search.

First claim in the present matter is narrowly focused on establishing that Google’s provision of internet search is properly classified as a common carrier and/pr public utility under Ohio Common Law.

Ohio requests injunctive relief to remedy the unfair advantages Google’s presentation of search results, have allowed it to create for its other business lines.

It was stated that Google intentionally structures its Results Pages to prioritize Google products over organic search results. Google intentionally disadvantages competitors, by featuring Google products and services prominently on Results pages. Google’s Results Page architecture is therefore designed to provide Google’s own products, services, and platforms with an advantage over providers of similar products, services, and platforms, in turn, also limiting traffic to non-Google sites.

What does the State of Ohio seek through this suit?

Ohio has an interest in ensuring that Google, its users, and the entities whose information Google carries are aware that Google Search is a common carrier under Ohio law. Ohio also has an interest in ensuring that as a common carrier Google Search does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce.

Declaratory Judgment

Real and Justiciable Controversy between State of Ohio and Google

The above concerns whether Google’s operation of Google Search is a common carrier and/or public utility and the duties Google owes as a common carrier and/or public utility to the State of Ohio, all of its component parts, and its citizens, journalists, and businesses.

It is expressed that an entity may be characterized as a public utility if the nature of its operation is a matter of public concern and if membership is indiscriminately and reasonably made available to the general public.

Google’s operation of Google Search is a public utility and Google, in its operation of Google Search, is a common carrier.

Common Carrier Non-Discrimination Declaratory Judgment & Permanent Injunctions

Google is duty-bound, as a common carrier, not to structure Google Search Results in a manner that unfairly discriminates against providers of products, services and information with whom Google’s non-search components compete.

The self-preference by Google on Results Pages is unreasonable discrimination by a common carrier.

Therefore, State of Ohio is specifically entitled to a declaration that Google, in its operation of Google Search, has a duty to carry information from other sources indiscriminately as compared to Google’s own information.

Thus, Damages are an inadequate remedy for Google’s impermissible self-preferencing on the Results Page. [State of Ohio v. Google LLC]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while citing the scope of Right to Privacy and Right to be Forgotten granted interim protection in light of the same in the present matter.

In the present matter, the petitioner sought for the removal of a Judgment titled: Custom v. Jorawar Singh Mundy, Crl A No. 14 of 2013, from the platforms – Google, Indian Kanoon and vLex.in.

Background

Petitioner who is an American Citizen submitted that when he travelled to India in the year 2009, a case under the Narcotics Drugs and Psychotropic Substances Act, 1985 was lodged against him. Though the trial court had acquitted him of all the charges in the year 2011, for which an appeal was filed and a Single Judge of this Court upheld his acquittal.

Petitioner after his acquittal had travelled back to the United States and pursued law and realized that he was facing a huge disadvantage due to the fact that the judgment rendered by this Court was available on Google search to any potential employer who would check his background before employing him.

Due to the above situation, the petitioner was unable to get employment to his expectations despite having good academic record.

In view of the above, the petitioner issued a legal notice to the respondents for the removal of the Judgment.

Right to Privacy

vLex.in removed the Judgment, however the other platforms did not and hence the petitioner sought removal of the Judgment from all the Respondent platforms, recognizing the Right to Privacy of the Petitioner under Article 21 of the Constitution.

Counsel on behalf of Respondent 1 – Shiva Lakshmi submitted that if this Court directed the removal of the said Judgment, MEITY would accordingly issue directions to the said Respondents 2 – 4 platforms.

Whether a Court Order can be removed from Online Platforms? 

The above issue requires examination of the two rights – Right to Privacy and Right to Information of the Public and Maintenance of Transparency.

Supreme Court’s Constitutional Bench in K.S. Puttaswamy (Privacy-9j.) v. Union of India, (2017) 10 SCC 1 recognised the Right to Privacy.

Orissa High Court in Subhranshu Rout v. State of Odisha 2020 SCC OnLine Ori 878 had also examined the aspect and applicability of the “Right to be Forgotten” qua Right to Privacy, in a detailed manner.

[Also Read: https://www.scconline.com/blog/post/2020/12/07/orissa-hc-read-how-high-court-emphasised-the-need-of-right-to-be-forgotten-in-cases-of-objectionable-photos-and-videos-of-victims-on-social-media/]

High Court on perusal of the above and on careful consideration of the present matter opined that owning to the irreparable prejudice that may be caused to the petitioner, his social life and his career prospects, prima facie in Court’s opinion, Petitioner is entitled to some interim protection, while the legal issues are pending adjudication by this Court.

Therefore, Court directed Indian Kanoon to block the said Judgment from being accessed by using search engines such as Google/Yahoo etc. till the next date of hearing.

Matter to be listed on 20-08-2021.[Jorawer Singh Mundy v. Union of India, 2021 SCC OnLine Del 2306, decided on 12-04-2021]


Advocates before the Court:

For the Petitioner: Sanjay Kumar

For the Respondents: Shiva Lakshmi

Supreme Court of The United States
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]