Competition Commission of India Doi: 10.54425/ccijoclp.v2.

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Journal on Competition Law and Policy Vol. 2, December 2021, pp. 97-120

Digital Economy, Data, and

Dominance: An Indian Perspective
Ankit Srivastava1 and Divyansha Kumar2

Abstract
The emergence of data as an asset for firms in the digital era has raised
several issues before competition enforcement authorities. This research
article focuses on the role of data in platform markets. After discussing
the significance and importance of data in the multi-sided markets and
its procurement by platforms for their competitive advantage in the
market, the authors point out the issues of network effects, economies of
scale, positive feedback loop, etc., and how they create an entry barrier,
ultimately harming competition in the market. The authors have also
discussed the concerns relating to the definition of the relevant market in
platform economies and the Competition Commission of India’s (CCI) take
on online and brick-and-mortar markets, tools used for defining relevant
market, and how they are not very effective in this market. The final leg of
the article discusses the impact of the data market on creating datapolies
by amassing huge amounts of data and creating monopolies, making it
tough for other players to survive or for new players to enter the market.
The paper discusses the role of CCI, the European Commission, and other
jurisdictions in tackling such situations, and the landmark judgements
passed by them regarding these datapolies sums up authorities’ stand on
tackling issues in the market mostly governed by data.

1Assistant Professor of Law and Director, Centre for Research in Competition Law
and Policy, Dharmashastra National Law University, India; [email protected];
[email protected]
2PhD Scholar (Faculty of Management), Symbiosis Centre for

Management Studies, Symbiosis International (Deemed University), India;

[email protected]; [email protected]
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Keywords: data, digital economy, e-platforms, network effect, abuse of

dominance, competitive advantage

1. Introduction
Technological developments in the past three decades, post liberalisation,
privatisation, and globalisation (LPG) reforms, have been overwhelming.
Advancements in the internet have undoubtedly made life easier for people
across the globe. Platforms such as search engines and social networking
sites provide several services to users for free. While consumers do not pay
any monetary considerations, they provide their data as consideration for
using these services. These platforms sell the data to advertising agencies,
who then use this data to analyse consumer behaviour and buying patterns
and lure consumers with personalised and relevant advertisements (Roy,
2020). It is argued that this is beneficial for both the consumer as well as
the businesses, since personalised advertising helps the consumer save
time, effort, and money, while allowing the businesses to make profits
from such investments, and thus, these practices are not abusive in terms
of competition.
Further, online businesses, coupled with other technological sectors,
have become part of a new economy in India. This new economy features
high innovation and low marginal costs and network effects. To establish
a competitive advantage in this market mostly driven by data, the player
needs to attract users through technological advances, hence causing
“network effects”. Network effects are present when a user’s efficacy
deriving from the consumption of a good or service surges with the
number of others buying the good or service. For instance, Facebook as
a platform is only useful when there are other users on that platform;
otherwise, the value of the network is zero. So, as the number of people on
Facebook increases, the value of the platform increases. A network effect
is of two types — direct network effect, when the value of a goods or
service increases as the number of users grow, or indirect network effect,
when the value of the network is raised as an increasing number of users
of certain products lead to more complementary products or services
(Inge, 2020).

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Another method the goods or service provider adopts is by paying

subsidies to users to entice them to use that product service. Companies
with superior financial capitals use this strategy. In 2016, Reliance Jio
entered the market of wireless mobile network service, providing free
calls and internet to the users of Jio for one year. This caused a hue and
cry in the telecom market, and Airtel filed a case against Jio for predatory
pricing and penetrating the market. However, as per the relevant market
of telecom service providers, Reliance Jio’s market share was a mere 7%,
and hence, it was not a dominant player in the market. The Commission
noted, “In a competitive market scenario, where there are already big
players operating in the market, it would not be anti-competitive for an
entrant to incentivize customers towards its services by giving attractive
offers and schemes. Such a short-term business strategy of an entrant to
penetrate the market and establish its identity cannot be considered anti-
competitive. In view of the foregoing discussion, the Commission is of the
considered view that no prima facie case of contravention of Section 4(2)
(a)(ii) of the Act is made out against Jio.”1 Many online platform players
have started the practice of deep discounting and cashback offers to lure
new users into establishing the network effect. Companies such as Ola,
Uber, and Paytm incurred huge losses for two financial years when they
entered the market in 2015/16 by subsidising rates or giving cashbacks
and increasing the demand for the services; eventually, in the following
years, they profited in billions (Parsheera, Shah, & Bose, 2017).
Even the Foreign Direct Investment (FDI) guidelines discuss price
practices by online firms. It was mentioned that foreign investment would
be granted if the firms maintain a level playing field and refrain from
influencing sale price.2
This study explores the use of data by providers of online platforms,
the use of data for competitive advantage, defining the relevant market
in the digital economy, and how dominance with regard to data may
be established regarding abuse of dominance cases involving online
platforms in Indian competition law. The issues discussed in this article
are of urgent attention, since their importance is likely to increase manifold
in the future.

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The authors of this study have adopted a doctrinal approach to formulate

this research, as follows: Firstly, primary sources of information such as
statutes and case laws are used to ascertain and analyse current scenarios,
and secondly, secondary sources such as reports by the government,
reports by the review committee of competition law, OECD reports, EU
competition law reports, articles, and papers written by eminent authors
on this subject in India and other jurisdictions are gathered and analysed.

2. Literature Review
Grunes and Stucke (2015) stated that data plays an essential role in the
strategic decisions of several companies. The companies are determined
to acquire data advantage over their competitors. At present, data-
driven mergers are increasing, and these data-driven business strategies
and mergers have significantly raised the implications of privacy laws,
consumer protection laws, and competition laws (Grunes & Stucke, 2015).
This leads to issues related to the abuse of dominance in the digital era,
owing to network effects, multi-sided markets, and the relevant market in
the Indian context (Parakkal, 2019).
Further, a competitive advantage arises by using the data provided to
online and multi-sided markets. Additionally, the economic character of
the data affects platform economies by excluding competitors by amassing
data (Graef, 2020). All this majorly contributes to the abuse of market
power and brings us to the ownership of data and the power that data
holds in the digital era. Surblyte (2015) discussed complex competition
law questions posed by the digital economy that have come to light after
the investigations against the platform markets. He also tried addressing
the issue as follows: “The question thereby is whether a ‘more-behavioral-
approach’ to competition law needs to be integrated into a competition
law assessment.” However, there is sufficient explanation of the
limitations of the behavioural approach, as Surblyte describes that such an
approach “would not speed up competition law assessment,” and that the
competence of behavioral approach cannot be overstated by reason of its
“subjective nature.” Therefore, the central idea is the possible utility of the
behavioural approach in the supplementation of the structural approach,

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as against the replacement of structural approach by a behavioural one.

The behavioural approach has substantial constraints that obstruct its
sole implementation in competition assessment, thereby reasserting
the essentiality of the structural approach, which is irreplaceable by the
behavioural approach.
In continuance, Mandrescu (2017) discussed the implications of
platform markets on the EU. Competition law majorly focused on Articles
101 and 102 and the modifications needed in the legislation to tackle the
situation more effectively. Mohindroo and Mohindroo (2018) have also
deliberated that the digital economy impacts competition law in the light
of web search, social platforms, and e-commerce platforms. They further
discussed competition law challenges posed by these platforms from an
Indian perspective. Mehta and Kumar (2020) elucidated on different aspects
of digital marketing issues surrounding the competition law regime of the
country. The vast area of research talks about antitrust issues, the role of
data, e-commerce concerns, concerns defining the relevant market, and
more. Kaushik (2019) also discusses the basics of the digital economy and
its interface with competition law. What are the challenges arising from it
and what may be the possible solution?
Recently, the Ministry of Corporate Affairs published The Report of
the Competition Law Review Committee (2019), which focused on major
amendments required in the Competition Act, 2002, to tackle the current
situations concerning competition in India. The major emphasis of the
report was to incorporate amendments in light of the growing digital
economy. From the above synthesis of existing literature, the authors of
this study have formulated certain research questions which need urgent
deliberation.

3. Research Questions
The authors have deliberated on the following research questions:

1. What is the role of data in the digital economy? Does data create
competitive advantages?

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2. What are the concerns for authorities in defining the relevant market in
the digital economy?
3. What is the impact of economic principles such as network effect and
economies of scale on competing in multi-sided markets?
4. What is the impact of data on competition-related issues of abuse of
dominance in India, and how is CCI tackling it?

4. Research Objectives
The research objectives of this study are:

 To study:
a. the role of data in the digital economy
b. the competitive advantages created by this data
 To explore the concerns for authorities in defining the relevant market
in the digital economy.
 To determine the impact of economic principles such as network effect
and economies of scale on competition in multi-sided markets.
 To identify competition-related issues impacting the data vis-à-vis
abuse of dominance in the context of CCI in India.

5. Result and Discussion

5.1 “Data” in the Internet Economy
Consumer data is important for any business, be it online or brick-and-
mortar, but more so for online businesses, as their business models are based
on acquiring and monetising personal data. Still, there is no comparison
of the scope and quality of gathered data in online business compared to
brick-and-mortar shops (Goldfarb & Tucker, 2012). “Data is considered
the new oil,” as coined by Clive Humbly, the British mathematician
(Charles, 2013). In a very broad sense, every piece of information is “data,”
but data can also be differentiated in many forms, such as personal data,
non-personal data, new and old data, valuable and invaluable data, etc.
(Körber, 2016). The role of data has gained significance in the “Two-sided/
Multi-sided Business Models,” in which a platform such as Google search
is operated from two sides — on the one hand, from advertisers who

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monetarily compensate Google, and on the other hand, the consumer who
pays through their data. Search engines, social networks, and e-commerce
platforms act as intermediaries between different customer groups and
can be considered multi-sided platforms. The important aspect which
creates a multi-sided business is an indirect network effect that overlaps
with different customer groups (Filistrucchi, Geradin, & Damme, 2013).
So, when customers join one side of the market platform, the value of the
other sides of the platform increases automatically.3
One fact which remains undisputed is that the company that controls
data shall dominate the economy in the future, whether it is personal data
or non-personal data. The new draft e-commerce policy of 2020 also raises
concerns that a few companies emerge as leaders and exercise control over
a big part of the information repository, which can lead to the emergence
of monopolistic tendencies and subversion of competition, which is a
threat to fair competition (Sharma, 2020). The Indian government came up
with The Personal Data Protection (PDP) Bill, 2018 along the lines of the
European Union General Data Protection Regulation 2016,4 which defines
personal data as “Any data about or relating to a natural person who is
directly or indirectly identifiable, having regard to any characteristic, trait,
attribute or any other feature of the identity of such natural person, or any
combination of such features, or any combination of such features with
any other information.”5 But there should be relative criteria to distinguish
personal and non-personal data. Understanding the importance of non-
personal data in the future, the Ministry of Electronics and Information
Technology appointed a committee of experts on Non-Personal Data
Governance Framework under the chairmanship of Kris Gopalakrishnan,
the former executive vice-chairman of Infosys. The committee submitted
their report in July 2020, in which it defined non-personal data as, “When
the data is not ‘Personal Data’ (as defined under the PDP Bill), or the data is
without any Personally Identifiable Information (PII), it is considered Non-
Personal Data.” It also mentioned the definition given by the European
Commission (2019): “Guidance on the Regulation on a framework for the
free flow of non-personal data in the European Union.”6

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5.2 Data as a Competitive Advantage

The currency for online platforms need not always be money. In various
cases, it is data (Stucke, 2018). We discussed the importance of data for
firms and the methods they employ to collect the same. Multiple online
platforms can collect relevant information and data at a low collection cost,
storage, and analysis (Tucker & Wellford, 2014). The data which search
engines, social networks, and e-commerce platforms use are unique and
not readily available.7 The purpose for which these platform firms invest
so much capital in developing free services for users is for data, since it
is not easily and readily available (Grunes & Stucke, 2015). The effect of
exclusive access to data and data collection is subject to “economies of
scale” (Mehta & Kumar, 2020), which give rise to competitive advantage
(Vicente, 2016). Economies of scale and network effects lead to entry barriers
that protect the position of the already existing player in the market and
makes it tough for a new entrant to find a position in the market (Shapiro
& Varian, 1999). For a platform to gain advantage in the market, it needs
to collect and process real-time data and past user information. We can
notice that platforms like Facebook collect real-time data and process
it according to the viewer’s choices, so the content changes according
to the user’s preferences operating the platform, and they analyse such
data for all users. Google amounts to the best search engine because of
its large base of returning users, enabling it to immediately adapt to new
user preferences and provide the requisite data quickly (Toole & Athey,
2013). Thus, the pace of procuring and developing this personal data is the
major reason any company obtains significant market power and gains
an advantage in the market (Ezrachi & Stucke, 2016). The Economist has
pointed out the dominance of Facebook, Google, Amazon, and Apple
concerning the amount of data they have and proposed a phrase: “BAADD
(too big, anti-competitive, addictive, and destructive to democracy)
to Worse” concerning the creation of data monopolies (Smith, 2018). It
is often said that, apart from relevant and recent data, the firm needs a
well-functioning algorithm to operate an online platform successfully,
but Peter Norvig, chief scientist at Google, was quoted saying, “We don’t
have better algorithms than anyone else. We just have more data” (Asay &

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Reily, 2010). The amount of such data held by the platforms creates entry
barriers and other competition concerns for the authorities to look at.

5.3 Relevant Market and Market Dominance Issues

Technology and new-age markets were discussed at length in the
Injeti Srinivasan Report of the Competition Law Review Committee8,
highlighting the importance of the facets of growing digital markets. It is
a welcome step, and the draft amendment bill of 2020 is expected to tackle
digital market issues. This would be remarkable for the international best
practice of competition law. The traditional market or brick-and-mortar
market analysis is very different from online platforms or digital markets
(Deo & Verma, 2018). There are numerous issues and challenges faced by
competition authorities, which are discussed below.

 Defining the Relevant Market

As discussed earlier in this article, digital markets comprise two-sided
and multi-sided market platforms, such as Facebook and Amazon, among
others (Evans, 2008). These interactions of these platforms amongst
themselves and with customers cause concern for regulators (Mohindroo
& Mohindroo, 2018). The market definition is associated with identifying
goods or services, causing competitive pressure that different firms in the
market deal with (Whish & Bailey, 2018); it is also associated with market
power assessment. Because of this, the process of defining the market
becomes of utmost importance.9
Earlier, the Competition Commission of India (CCI), in the case of
Ashish Ahuja v. Snapdeal,10 defined the relevant market as including both
online and offline market channels and concluded that online and offline
markets are different channels of the same distribution product. Hence,
they are not different but a single market.11 In All India Online Vendors
Association and Flipkart India Private Limited & others12 (CCI Order Quashed
by NCLAT in March 2020),13 CCI changed its stance with respect to online
and offline market and segregated between online and offline markets.
CCI delineated the relevant market as “services provided by online
marketplaces for selling of goods in India”. In a very recent case, Federation

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of Hotel; India Pvt. Ltd (MMT) & Other Restaurant Associations of India
(FHRAI) and MakeMyTrip,14 CCI was of the opinion that the magnitude
of harm caused by anti-competitive activities might be determined by
further investigation in the case, and while dealing with the allegation
of abuse of dominance under the legal framework of Section 4 of the
Competition Act, determined the relevant market to be the “market for
online intermediation services for booking hotels in India” and continued
segregation of the two markets. The Competition Law Review Committee
on this aspect has suggested changes in Sections 19(6) and 19(7) dealing
with relevant geographic and product market factors. The committee
was of the opinion of making the specific provisions in these sections
more inclusive and expanding the scope of market delineation to cover
developments in the digital economy.15
In the traditional market, tools such as Critical Loss Analysis (CLA)
and Small but Significant Non-Transitory Increase in price (SSNIP)
are used to determine dominance in the relevant market. Both these
tests determine the substitutability of a product if there is a small but
significant increase in price. The question determined is whether the loss
in demand affects the profitability when the price increases (Auer & Petit,
2015). But these tests are most problematic because of the pricing nature
of multi-sided markets and may not provide a satisfying solution (Ince &
Dogan, 2019). Another issue in defining the market is that the authority
may miss out on the relationship of a multi-sided platform with other
platform markets. Taking the example of the case of Vinod Kumar Gupta
v. WhatsApp Inc.,16 the Commission took the relevant market to be “the
market for instant messaging services using consumer communication
apps through smartphones”. The market definition adopted by CCI in the
case mentioned above was similar to that of the European Commission’s
(EC) decision on the Facebook/WhatsApp17 merger, in which EC, in its
market analysis, included narrower involved markets, i.e., the market
for consumer communication services, social networking services, and
online advertising services, which wasn’t the case in CCI’s judgement
(Bose, 2017).

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For online platforms, the relevant market is currently defined around

the certain goods or services provided to users and advertisers, as most
platforms do not provide data to the third party and use it to improve the
experience of their users so that there is no trade, and hence, no market
can be identified. In the merger case of Facebook and WhatsApp, the
European Commission stated that “it had not investigated any possible
market definition with respect to the provision of data or data analytics
services, since neither of the parties involved was active in any such
potential markets.”18 Under the present competition law regime, a correct
market definition looks out for the existence of supply and demand of data
for the goods or services. Later, in 2017, as soon as data trading was done
between WhatsApp and Facebook and WhatsApp changed its policy, the
Commission fined Facebook 110 million euros for providing misleading
information to the Commission in their 2014 investigation.19
When it comes to traditional markets, the authorities rely majorly on
market share to assess market power, thus making it necessary to have
a precise market definition. But this can’t be followed in delineating the
relevant market in digital multi-sided markets. Due to the structure of
such markets influenced by network effects, positive feedback loops,
etc., the market definition becomes a tedious process. Calculating market
shares is not easy because the nature of the market is such. Hence, we
cannot solely rely on market share in determining market power (Ince
& Dogan, 2019). The authorities may look upon other economic factors
such as network effects as an entry barrier, and positive feedback loop
as a means to determine the increase in market power when defining the
market becomes tedious through traditional tools (Cremer, de Montjoye,
& Schweitzer, 2019). Another challenge would come from vertically
integrated companies such as a virtual market operator (like Amazon),
also functioning as an online retailer (such as Solimo, which is a brand
owned by Amazon through which it sells its merchandise). In such cases,
access to strategic information of other competitor retailers and consumer
behaviour may lead to distortion of competition. In such markets, a
vertically integrated company could adjust product range and price due
to the availability of such critical information as against its rival non-

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vertically integrated retail firms. Therefore, such a vertically integrated

firm would stand to gain from such discriminatory access to information.
Policymakers must also take this possibility into account.

 CCI and Issues Involving Dominance in the Digital Era

Dominance is not bad per se, but its abuse is.20 The dominant enterprise
cannot use its dominant position21 to engage in anti-competitive
endeavours to uphold its position in the market.22 Since the establishment
of CCI, it has established what constitutes abuse by dominant firms
through numerous cases. As per the Act, the Commission employs the
two-step test to determine whether the enterprise in question is dominant
in the relevant market (through the factors provided in the Act),23 and if
it is, whether it is abusing its dominant position.24 India’s major challenge
with respect to competition issues concerning dominance is the cropping
up of platform markets that have established a firm position in the Indian
markets. With the evolving digital space in the market, the issues relating
to competition are also on the rise, posing, in itself, a new challenge
altogether for the authorities to ponder. The Commission with regards
to the abuse of dominance in the digital era has given some landmark
judgements (Parakkal, 2019).
The CCI in the Google online search bias case25 noted that “for a search
engine it is extremely important to be able to ‘crawl’ the web and index
the data.”26 Google has already crawled the web concerning servers and
technology and has enormous and incomparable data, which proves
prohibitive for other new entrants in the search engine market. In this
case, CCI held Google to be abusing its dominant position, as it indulged
in the unfair practice of displaying advertisements without any relevance,
thus violating Section 4(2)(a)(i) of the Act. Additionally, there was an
unfair imposition on the users of search options for flights by display and
placement of Commercial Flight Units with a link to Google’s specialised
search option. Also, the partners seeking access for advertisement on
Google were in a foreclosure agreement and asked not to use search
services provided by competing search engines, which violated various
provisions of Section 4 of the Act.27 Similar judgements have been passed

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against Google in other major jurisdictions as well (Scott, 2017). In the

second case28 against Google in the year 2019, CCI ordered a probe for
abusing its dominant position in clear violation of Section 4 of the Act, as
CCI formed a prima facie opinion against the mandatory pre-installation
of the Google Mobile Services29 suite, which corresponds to unfair
trading conditions in violation of Section 4(2)(a)(i) and has strengthened
the already dominant position of Google (Agarwal, 2019). CCI took the
relevant market as the “market for licensable smart mobile device OS in
India,” similar to that of European Union’s decision on the same aspect30
and held Google dominant, as Android accounted for 80% of the market
(Asher, 2019). For the third time,31 in May 2020, CCI started looking into
another allegation that Google is abusing its dominant position to promote
its mobile payments app unfairly. It was said in the allegation that Google
showcases its payment app more prominently in the Google app store,
giving it an advantage over other apps.
In another landmark case of abuse of dominance, Vinod Kumar Gupta,
the informant, filed an information before the Commission alleging anti-
competitive activity by WhatsApp by its privacy policy, which was
changed by WhatsApp two years after the merger with Facebook and was
allowed by the European Commission in 2014,32 as Facebook submitted
a strong statement that there should be no sharing of data post-merger.
However, in 2016, WhatsApp changed its privacy policy under which
subscribers had to share their details with Facebook. The European
Commission slammed a fine of 110 euros against Facebook for misleading
the Commission. The other allegation by the informant Vinod Gupta was
that WhatsApp is indulging in predatory pricing by making the services
free of cost. The informant also framed allegations with respect to privacy
and how it violated provisions of the IT Act. Still, the Commission was
of the opinion that this subject matter was not under their ambit.33 While
analysing the case, CCI dismissed the case on WhatsApp’s argument that
they gave the subscribers the option to opt out. The sharing is done to
increase efficiency, and content shared on WhatsApp is encrypted and
cannot be accessed by a third party. WhatsApp should have been fined
in this case as the subscriber was not given an opportunity to make an

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informed choice to leave the platform after the policy was updated. Also,
the reasons given by the platform were contradictory (Bose, 2017). Acting
upon the same, in 2021, CCI took suo motu cognizance of the matter
after the change in the privacy policy of WhatsApp once again, where
they revoked the option of opting out, which may lead to infringement
of consumers’ privacy.34 CCI found WhatsApp to be dominant in the
instant messaging services market, as it is installed by approximately 96%
of smartphone users. The new privacy policy not allowing consumers to
opt out was creating a “lock-in” effect due to the networks effect of the
app. CCI’s order was challenged in the Delhi High court35 on the grounds
that a matter already dealing with such issues is sub judice in the Supreme
Court. Still, the High Court refused to intervene in the investigation order
of CCI, as the matter is not outside the purview of CCI’s jurisdiction and
the issues pending in the Supreme Court are vaster. This had to happen
to look at the background of the events since 2014, when the merger
happened. CCI also made it very clear in the case of Vinod Gupta that the
only reason they are not investigating the case against WhatsApp was the
option of opting out for the consumers (Sharma, 2021).
The Hon’ble Supreme Court of India recently decided the case
relating to abuse of dominance by cab aggregators. It started when Meru
filed a case against Uber with CCI. In data-driven platforms, services
are provided at a cost that attracts consumers to increase the network
effects the greater the number of customers, the greater the profit. In Re:
Meru Travel Solutions Private Limited (MTSPL) v. Uber India Systems Pvt.
Ltd.,36 Meru alleged that Uber was indulging in predatory pricing and
offering deep discounts, adding up to the already subsidised prices, and
they were also giving huge incentives to drivers to keep them attached
to the network. The relevant market taken by the Commission was the
“market for radio taxi services in Delhi”. The informant also submitted
a report to establish dominance by Uber. Still, the Commission, on the
grounds that it was not reliable and similar, rejected it. The Commission
also mentioned that, in another case, a contrary report to this was also
submitted. On the issue, if Uber holds a dominant position, CCI was of
the opinion that Uber has a competitor in Ola in the relevant market, and

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their fluctuating market share showed that they are competitive in the
market, and hence, the case was dismissed.37 Meru filed an appeal in the
Competition Appellate Tribunal (COMPAT).38 While analysing the case,
COMPAT changed the relevant geographic Market from Delhi to Delhi-
NCR as there is a lot of movement of these cabs in this region. COMPAT
also relied on the fact that CCI has the power to make a prima facie view39
and it should have taken it when the material with facts was presented.
Additionally, if there were contrary reports, it would have been a good
reason to order an investigation. COMPAT ordered for an investigation by
the DG on the grounds of the deep discounts and incentives provided by
Uber and was of the opinion that it was done to expand the network and
business. On this order of COMPAT, Uber filed an appeal in the Hon’ble
Supreme Court of India.40 The court decided that there is no reason to
interfere with the investigation order of COMPAT, and it is difficult to say
that there is no prima facie case of abuse of dominance. The deep discounts
and losses faced per trip by Uber point towards the intention to eliminate
competition from the market. Although the Hon’ble Court didn’t discuss
the pricing in the platform markets, it is a relevant issue that needs to be
looked into in the future by authorities (Chandola, 2018).
The Hon’ble Supreme Court dismissed the appeal, directing the DG
to complete the investigation. On 14 July 2021, CCI reconsidered the
allegations on Uber in light of the DG’s investigation, where the relevant
product market was the market for radio-taxi services, the relevant
geographic market being Delhi-NCR, similar to the findings pertaining to
relevant market in the previous order of the Commission.
In relation to the allegation of abuse of dominance, CCI affirmed DG’s
investigation and held that, given the strong competition from Ola, Uber
was in no manner dominant in the market, and lower prices being offered
by Uber cannot be considered abuse of dominance unless such dominance
was distinctly established.
Substantiating the legality of lower prices, which was the strategy
employed by both Ola and Uber, CCI relied on Fast Track Call Cab Private
Limited and ANI Technologies Private Limited,41 that lower prices offered
by radio-taxi services are mere strategies to increase network effects and

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attract consumers and therefore, cannot be considered anti-competitive,

thereby reaffirming the series of previous decisions by CCI on alleged
abuse of dominance, where such abuse cannot be established unless it
follows a categorical establishment of abuse of dominance.

6. Conclusion and Suggestions

The challenges posed by the digital economy and data-driven markets is
going to increase in the future. It is important for the Commission to make
efforts to look at such cases in a more detailed manner to focus on ongoing
affairs about digital monopolies that are being treated as standards of
competition assessments in other jurisdictions. The different digital
companies such as Google, Amazon, Uber, and Apple are turning into
data monopolies. This will be a serious threat for other smaller players or
new entrants in the market, adversely affecting the market. The purpose
of these datapolies is to eliminate competition from the market and create
entry barriers for new entrants and rule the market. Specifically, in the
Indian market, where the government is trying to promote small startups,
the role of CCI in keeping these firms in check becomes more important.
We have already assessed how the economics of these new-age markets
causes entry barriers and issues of abuse of dominance in the market.
As suggested by various scholars in more established jurisdictions, the
authorities should qualify “data” as a factor for market dominance, as
the data in these platform markets as the tool for determining dominance
should be seriously thought of, and the Competition Law Review
Committee report has played a vital role by advocating for the scrutiny
of the mergers taking place on account of their network and data wealth
rather than assets. This simply means that data should be qualified as a
parameter or asset to judge the dominance of the firm in the market. By
implementing it, in the future, the Commission may not miss the scrutiny
of mergers of data giants such as Facebook and WhatsApp due to the lack
of threshold limits. The data is no more a non-rivalrous good, and every
market player is now analysing data on a real-time basis to gain competitive
advantage in the digital space. Data should be used as a consideration
and equivalent to price when it comes to defining the relevant product

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market in which the price of goods and services are taken as a tool. The
Commission should look at the issue of defining the relevant market in
the dominance cases in multi-sided markets from a different perspective.
Network effects, positive feedback loops, multi-homing, etc., should be
considered in determining the market for these platforms, as the traditional
tools are often burdensome to apply. Under the current regime, dominance
has to be established in a relevant market of goods and services. But for an
entity to be characterised as a “data dominant enterprise,” there is a need
to delineate a “market of data” corresponding to every good or service.
Moreover, such a herculean task would be complicated when the data
corresponds to multiple goods and services or the value of the data itself
is “short”. Hence, policymakers must provide guidelines on these issues
to ensure procedural consistency in CCI’s approach in such cases. The
Commission needs to be proactive as always. The discussion over new age
markets in the Competition Law Committee Report and suggestions over
amendments keeping in mind the growing digital space was a welcoming
step for competition. The suggestions are incorporated in the Competition
Amendment Bill of 2020. The creation of entry barriers in the market or
abnormal market power due to data would largely depend on the “type
or variant of data involved” and its inherent characteristics, which would
directly impact its value in a particular transaction or context. As an
example, in a market of third-party data, the dominant enterprises selling
data may employ exclusionary tactics such as tying, exclusive contracts,
discriminatory pricing, etc., which could result in the creation of entry
barriers. The cost involved in procuring, maintaining, and processing data
can become a reason for employing such strategies. Therefore, adequate
amendments must be made to the Competition Act 2002, allowing CCI
to deal with such incidences effectively. While pronouncing the orders,
the Commission should also involve IT experts and data scientists to
better understand new-age markets. Efficient competition enforcement
is a very important factor; otherwise, it will not be easy to control the
economic power of growing giants in platform economies. Where a
particular category or set of data is categorised as an “essential facility,”
refusal by a dominant enterprise to provide access to it may amount to

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abuse of dominance. However, there is no law or rule which can force a

dominant enterprise to share such “essential” data with its competitor in
the same relevant market. In such a scenario, the competing entity would
have to satisfy a very high and vague standard of ”indispensability” of
such unique data. If regulated effectively, the digital market has features
that can increase competition compared to the traditional market. CCI is
well-armed to handle cases of dominance in the present digital economy.

Endnotes
1
Bharti Airtel Ltd. and Reliance Industries Limited, Reliance Jio Infocomm.
Ltd.; Case no. 03 of 2017, Competition Commission of India.
2
DIPP (2016, March 29). Press Note 3.
3As the number of Facebook users increases, for instance, more advertisers

will be inclined to buy (additional) advertising space on Facebook, since

they will reach a larger number of potential buyers.
4Art.
4(1) of the EU General Data Protection Regulation 2016/679
(GDPR): ‘personal data’ means any information relating to an identified
or identifiable natural person (‘data subject’); an person is one who can
be identified, directly or identifiable natural indirectly, in particular by
reference to an identifier such as a name, an identification number, location
data, an online identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of that
natural person.
5Section
3(29), The Personal Data Protection Bill, 2018.
6Firstly,
data that never related to an identified or identifiable natural
person, such as data on weather conditions, data from sensors installed on
industrial machines, data from public infrastructures, and so on. Secondly,
data, which were initially personal data, but were later made anonymous.
Data which are aggregated and to which certain data transformation
techniques are applied, to the extent that individual specific events are no
longer identifiable, can be qualified as anonymous data.
7Supra
n. 3
8The
Committee was established by the Ministry of Corporate Affairs,
Government of India, to bring up issues in the law and to propose

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amendments to the Act of 2002, http://www.mca.gov.in/Ministry/pdf/

ReportCLRC_14082019.pdf
9supra n. 9
10Competition Commission of India, Case No. 17 of 2014.
11Also
see Competition Commission of India, Case No. 80 of 2014,
Competition Commission of India, Case No. 23 of 2016.
12
Competition Commission of India, Case No. 20 of 2018.
13
Competition Appeal (AT) No.16 of 2019.
14
Competition Commission of India, Case No.14 of 2019.
15
supra n. 27
16Competition
Commission of India, Case No. 99 of 2016
17Case
No. Comp/M7217, decision dated 3.10.2014
18Case
No COMP/M.7217 – Facebook/WhatsApp, October 3 2014, para.
72
19European
Commission, Mergers: Commission fines Facebook €110
million for providing misleading information about WhatsApp takeover.
Retrieved from
https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1369
20Provisions
relating to Abuse of Dominance, Advocacy Series 4,
Competition Commission of India, https://www.cci.gov.in/sites/
default/files/advocacy_booklet_document/AOD.pdf
21Section
4, explanation (a): “dominant position” means a position of
strength, enjoyed by an enterprise, in the relevant market, in India, which
enables it to — (i) operate independently of competitive forces prevailing
in the relevant market; or (ii) affect its competitors or consumers or the
relevant market in its favor.
22See Section 4 of Competition Act, 2002.
23See
Section 19 (4), (6) and (7) of Competition Act, 2002.
24Google
Inc. & Ors v. Competition Commission of India & Anr., (2015)
127CLA367(Delhi)

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25Matrimony.com Limited & Ors. v Google LLC & Ors. and Consumer
Unity Trust Society v Google LLC & Ors; (Case Nos. 07 and 30 of 2012).
26Competition Commission of India, case no. 7 of 2012, Para 122
274(2)(a)(i), 4(2)(c), and 4(2)(e)
28Competition commission of India, Case No. 39 of 2018.
29
CCI noted that a wide range of applications such as Google Maps, Google
Chrome, and YouTube were only available through GMS on Android
phones, which had to be pre-installed by the manufacturer and couldn’t
be availed directly by end-users.
30
Case AT.40099 – Google Android, Commission Decision of July 18, 2018.
31
The Times of India, (2020). Google faces antitrust case in India over
payments app: Report, Retrieved from http://timesofindia.indiatimes.
com/articleshow/76038619.cms?utm_source=contentofinterest&utm_
medium=text&utm_campaign=cppst
32Case
No. Comp/M7217, decision dated 3.10.2014 (‘Acquisition
Approval’)
33A
separate case for privacy is in Delhi High Court, Karmanya Singh
Sarren and Other v. Union of India [W.P.(C) 7663/2016]
34suo
motu Case No. 1 of 2021.
35W.P.(C)
4378/2021 & CM 13336/2021
36Case
No. 96 of 2015.
37Section
26(2) of the Competition Act, 2002.
38Meru
Travels Solutions Private Limited v Competition Commission of
India, Appeal No. 31 of 2016.
39Section
26(1) of the Competition Act, 2002
40Uber India Systems Pvt. Ltd v Competition Commission of India, Civil
41Appeal
No. 641 of 2017

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