COMPETITION ISSUES IN DELINEATING RELEVANT MARKET LAW-COMP-702

CENTRE FOR POSTGRADUATE LEGAL STUDIES

COMPETITION ISSUES IN DELINEATING RELEVANT MARKET

DEFINITIONS IN THE CONTEXT OF DISRUPTIVE INNOVATION

BY MEGHA CHAUHAN

19010859

2019-2020

DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE MASTER OF LAWS (LLM) CORPORATE & FINANCIAL LAW AND POLICY

PROF. PRATEEK BHATTACHARYA ASSISTANT PROFESSOR, JINDAL GLOBAL LAW SCHOOL

DECLARATION

I, Megha Chauhan, hereby declare that this dissertation titled Competition Issues in delineating relevant market definitions in the context of Disruptive Innovations is towards completion of the one year residential Masters in Law programme (LLM) in Corporate Law and Financial Policy at Centre of Postgraduate Legal Studies in OP Jindal Global University, under the exceptional support and able guidance of my supervisor Professor Prateek Bhattacharya, Assistant Professor at Jindal Global Law School.

I further declare that this dissertation is the synthesis of my original work and analysis based on case laws, research papers, reports, scholarly works, news articles etc. which have been duly cited wherever they are referred during the course of the given dissertation. I have duly adhered to the CPGLS guidelines and dissertation policy for the captioned LLM programme.

Duly affirmed and declared by:

Megha Chauhan

Student ID- 19010859

LLM Batch 2019-2020

Corporate Law and Financial Law & Policy specialization

Date- 20 June 2020

TABLE OF CONTENTS

ACKNOWLEDGEMENT...................................................................................................... 3

ABSTRACT............................................................................................................................. 4

INTRODUCTION................................................................................................................... 4

CHAPTER OVERVIEW........................................................................................................ 6

RESEARCH QUESTIONS.................................................................................................... 7

1. NEWNESS IN THE MARKET- WHY IS THERE A NEED TO PAY CLOSER ATTENTION? 8
   
   
   1. MARKET DEFINITIONS............................................................................................. 8
   
   
   1. THE REGULATOR WORRY..................................................................................... 11
   
   
   1. DEVELOPMENTS AND RECOMMENDATIONS-CCI........................................... 11
   
   
   

1. UNDERSTANDING THE ROLE OF BUSINESS MODELS.................................... 15
   
   
   1. NEW MARKETS DISCOURSE.................................................................................. 15
   
   
   1. STATIC APPROACHES- DYNAMIC MARKETS.................................................... 19
   
   
   

1. MAPPING THE FUTURE COURSE OF ACTION................................................... 22
   
   
   1. CHICAGO DILEMMA................................................................................................ 23
   
   
   1. CONCLUSION- THE WAY AHEAD......................................................................... 25
   
   
   

BIBLIOGRAPHY................................................................................................................. 28

ACKNOWLEDGEMENT

I would like to express my heartfelt gratitude and appreciation to my supervisor Professor Prateek Bhattacharya for helping me all throughout the course of my dissertation work. Professor Bhattacharya has enhanced my knowledge in the subject of competition law by pushing me to put in extra efforts in learning the nuances of the subject and the current regulatory framework in both India and overseas. By sharing the vast practical knowledge that Professor Bhattacharya has amassed while working closely with the competition regulators in India in landmark competition cases, he has expanded my knowledge beyond research literature by leaps and bounds. His valuable feedback and suggestions have been helpful and encouraging.

I would like to express my thank you to the Vice-Chancellor Prof (Dr.) C. Raj Kumar, entire CPGLS office headed by Prof (Dr.) Sridhar Patnaik and now Prof (Dr.) Vishwas H Deviah who continually pushed our LLM batch to make significant strides in a brief period and arranged useful webinars (covid-19 situation) and seminars/conferences (pre covid-19 situation) that have helped us to bring more value to our respective dissertation work. I would like to thank Ms. Anitha Shibhu for her effective management in the office of CPGLS and being so approachable at all times, clearing my doubts and queries every step of the way. I would also like to thank Professor Dolashree K Mysoor for overseeing my dissertation progress and coordination.

I would also like to thank Professors Avirup Bose and Shilpi Bhattacharya for sparking my interest in the field of competition law that has further boosted my dissertation research work. Last but certainly not the least, I would like to express my thank you to my extremely supportive parents who have stood by me in testing covid-19 times and enabled me to write my dissertation sans difficulties, ensuring that I have uninterrupted internet connectivity throughout. A special thank you to Sidhant Mohapatra for being an exceptional support system and guiding light throughout my dissertation journey.

A huge THANK YOU.

ABSTRACT

What does disruptive innovation means in modern internet-based economies? My dissertation begins by explaining how the definition of disruptive innovation has evolved from the late 90s to twenty years from then. It explores the complexities in determining the relevancy of markets in both product and geographic dimensions in the context of competition regulation in India and the grey areas of enforcement that still exists. The enforcement gaps and hurdles in market definitions call for improved and well equipped regulatory procedures and methods for regulating the new age markets. It seeks to examine various case laws and the stance taken by disruptors like Google, Amazon and so forth, in an effort to understand the legal ramifications of the market delineating strategies, tests, and methodologies for disruptive markets. There is a need to take a new turn for delineating relevant markets in India and find a possible workable route through exploratory methods and comparative analysis. The endeavour is to make India's competition regulation adapt well to the new market realities by taking valuable guidance from international practices and research efforts. An amalgamation of predictive and exploratory research method is used to examine competition concerns both present and future. It also draws similarly situated case laws in a comparative analysis research method to discuss the Indian versus overseas regulatory approach for finding feasible benchmarks.

INTRODUCTION

Before analysing why current market definitions fail to capture market realities created by disruptive innovation, it becomes crucial to understand the meaning of disruptive innovation. The classification of innovation happens in two aspects - disruptive and sustaining innovations. Disruptive essentially means to disrupt and create a new genre of markets that were never conceived of, creating a break-through of sorts. Studies on why leading firms and business failures reveal the difference between the two innovations more vividly. Certain risk factors and pressure to ensure equal performance deliveries to customers; sometimes lead to redundancies and consistent profit fixations paving entry for risk-taking new firms (disruptors) to dismantle the average performance levels a consumer previously perceived. These changes lead to rampant switch-overs to such new products and technologies in the survival of the fittest fashion. Understanding the term disruptive can be in the sense that a top producing leader assumes that his growth and profit cycle is immune to outside challenge, but then the assumption is proved to be wrong with the entry of the disruptor. In this manner, disruptive innovation can drastically change consumer preferences by the introduction of "new performance trajectories"¹ through outperformance, thus pushing old products into redundancy.² The potential of disruptive innovation is difficult to gauge at its inception, and some may even refute the big claims of such new product/technology as being useless. However, slowly it develops and transforms itself, dislodging top tier products and technologies. Such as expensive huge photocopying machines operated by high skilled labour replaced by small, convenient and relatively cheap machines that were easy to use³, disc drive industry replaced by convenient pen drives for business/education, music streaming apps instead of good old cassettes and disc drives (depending on the consumer use) amongst many other examples.

Clayton Christensen who first discussed the difference between sustaining and disruptive innovation, explained the latter as the distinguishing factor for the rise and fall of businesses and firms⁴. The consumers may be delighted, on the one hand (sustaining), or consumers may be pleasantly shocked and extremely satisfied on the other side (disruptive). In essence, consumer feedback is crucial, and the same forms its epicentre to formulate a good market strategy and allocate necessary resources for developing new "break-through" technologies.⁵

At the initial time of discussions on the difference between disruptive innovation and sustaining innovation in the research literature, customer feedback and trajectory cycles were not measured with the kind of data precision that exists today. Disruptive innovation becomes problematic because it is coupled with persistent network effects i.e. users value a platform because of the number of other users on it.⁶ With large pools of data and prioritizing scales over profit, new age business models need a recalibrated competition law regime. Traditional markets assessment with the help of qualitative assessment tools suitable to assess cost/price effects, fail to take into account "newer considerations" arising from the digital markets.⁷

New-age technologies that are enabled through the internet ("IT-enabled") are typically characterized by a limited number of players. Examples of such platforms include Google (online search), Amazon (online marketplace), Ola and Uber (cab services), Zomato and Swiggy (food delivery), Tinder, Shaadi dot com (online dating/matrimonial services), etc. These business models typically operate on multi-sided platforms where one side of the service is relatively free or subsidized through monetization from another revenue side (i.e., through advertisements, premium services, e.g., Zomato Gold, Amazon Prime, convenience fee charged from consumers, etc.). The number of externalities (direct and indirect), which are necessarily the costs/benefits reaped by a firm through various such actors on its different market segments increase the likelihood of anticompetitive conduct which cannot be easily detected. Why disruptive? Meaning, it disrupts old existing market dynamics through unique product specifications such as; (a) real-time data generated by a critical mass of users accessing the platform, (b) inbuilt automated processes that offer an unmatchable "user experience" (e.g., Google SERP engine and other algorithm technologies), (3) incentivisation achieved through lock-in and network effects (will be discussed in the later sections) and significantly less risk due to its vast user mass (e.g., ratings, software feedbacks that helps in making updates, machine learning, AI).

CHAPTER OVERVIEW

This dissertation is divided into three parts. The first part titled Newness in the Market- Why is there a need to pay close attention? discusses market definitions in Indian competition law framework and highlights the growing regulatory concerns for digital markets coming from the Competition Commission of India (CCI), analysing whether the revised approach that is being discussed, is adequate enough.

The second part titled Understanding the Role of Business Models discusses why understanding the business structure and strategy is crucial. The comparative analysis method is used by using similar case studies of Google in India⁸ versus EU⁹ and United States Federal Trade Commission (FTC)¹⁰, MakeMyTrip-GoIbibo matter clubbed with OYO- Treebo matter in India¹¹ (ongoing) versus the approach taken in Booking dot com case by Bundeskartellamt¹², to point out drawbacks in the Indian market definition framework.

The final and third part titled Mapping the Future Course of Action deals with the competition policy framework which has largely been influenced by the Chicago school of competition law advocating that consumer welfare and efficiency as an ultimate goal. The Chicago school gained prominence in United States based on the works of Robert Bork¹³ who stressed that vertical integration and concentration are not necessarily anticompetitive. This led to liberal interpretation of vertical restraints as seen in the US Department of Justice (DoJ) and FTC 1984 guidelines¹⁴. Even in India, for vertical agreements under the Act, a rule of reason analysis is done to conclude whether or not the agreement is anti-competitive in nature. However, this simple black and white approach does not cater to the demands of the digital markets and hence there is a need to bring back components of the forgone Harvard school of competition law that signalled assessment of the relationship between the business structure and the conduct in hand. Further this concluding chapter underlines the need to move towards a technology-centric competition law framework for better evaluation and suggests ways to counter existing assessment and enforcement gaps.

RESEARCH QUESTIONS

1. Is the present competition legislation, i.e., the Competition Act, 2002, and the rules/regulations made thereunder sufficient for analyzing the anti-competitive effects of disruptive innovation?

1. Why do we need to reconsider the market definitions for disruptive innovation?

1. How can India be made more prepared for assessing the anti-competitive effects caused by disruptive innovation?

1. NEWNESS IN THE MARKET- WHY IS THERE A NEED TO PAY CLOSER ATTENTION?

1. MARKET DEFINITIONS

Market definitions set up an initial analytical framework for the assessment of competitive constraints in a two-dimensional manner. In competition law, the markets are defined in two dimensions that is product market definition and geographic market definition. The exact terminology used in the Act is "relevant market,"¹⁵; understood in terms of "relevant product market" and "relevant geographic market." This concept is used in assessing the competitive constraints and competitors' for anti-competitive agreements mentioned in S 3 and the abuse of dominance cases in S 4 of the Act.

In Competition Commission of India v Coordination Committee of Artists and Others^.16The Supreme Court dealt with the concept of the relevant market in competition law and defined the same as "power over the market."¹⁷ The court described it as a systematic process for assessing the competitive constraints in the market for examining who are the competitors and potential competitors by defining boundaries of the market in question¹⁸.

The competitive constraints are referred to as appreciable adverse effects on competition (in short "AAEC") are presumed per se (as it is without further inquiry) in case of horizontal agreements where parties are engaged in similar level of trade and provision for goods and services¹⁹ such as cartels, bid-rigging, market sharing, etc. The only element to prove is the existence of the horizontal agreement. However, for vertical agreements²⁰ (where parties are in different levels of trade and provision for goods and services) per se rule does not apply. Here the analysis is done as to whether the pro-competitive effects outweigh the anti- competitive effects in question. Such agreements are in the nature of "tie-ins, exclusive supply/distribution, refusal to deal arrangements, resale price maintenance," defined under S 3 (4) of the Act. The analysis of AAEC in vertical agreements is called the rule of reason analysis for determining if AAEC exists or not under S 19 (3) of the Act (reproduced below) where (a) to (c) are anti-competitive and (d) to (f) are pro-competitive;

19

(3).

• creation of existing barriers to new entrants to the market;

• driving existing competitors out of the market;

• foreclosure of competition by hindering entry into the market;

• accrual of benefits to consumers;

• improvements in production or distribution of goods or provision of services;

• promotion of technical, scientific, and economic development by means of production or distribution of goods or provision of services."

For abuse of dominance cases, a three-step approach is followed where the starting point is the determination of relevant market, second is an identification of the abusive practice under S 4 and followed by the qualitative assessment of factors under S 19 (4) of the Act. The factors contained in S 19 (4) are (reproduced below);

19 (4).

• market share of the enterprise;

• size and resources of the enterprise;

• size and importance of the competitors;

• economic power of the enterprise including commercial advantages over competitors;

• vertical integration of the enterprises or sale or service network of such enterprises;

• dependence of consumers on the enterprise;

• monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or public sector company or otherwise;

• entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for the consumers;

• countervailing buying power;

• market structure and size of the market;

• social obligation and social costs;

• relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition;

• any other factor which the Commission may consider relevant for the ²¹

A strict interpretation of the said factors does not cater to the demands of the digital markets. The reason is that the conventional contours of the "relevant market" does not take into consideration the modern economy and market issues. These include factors and conditions of digital platforms, the role of big data and direct and indirect network externalities, manipulation by consumer behaviour learning techniques, business strategies, etc. On the other hand, a liberal interpretation of the factors can lead to over-enforcement that can ultimately restrict the dynamic efficiency and growth of the economy. Most factors contained in S 19 (4) takes a different meaning when it comes to dynamic markets characterized by disruptive innovation. For instance, defining entry barriers under S 19 (4) cannot be done in a strait-jacket formula in dynamic markets. While sub-clause (n) of S 19 (4) talks about economies of scale, there is a separate category identified as economies of scope, example Google and Amazon. Google is better equipped to access new markets and fare better due to the constant feedback mechanisms which users provide, data learning, network effects, intermediary information, amongst other factors, versus a prospective entrant. This upper edge is not because of its current market share, but the market scope it possesses. Therefore competition is not in a particular market but for a market(s).²² In this aspect, market power remains a tricky concept because the relative market power of the disruptor expands with the collected user data (also called sticking market power).²³

These characteristics vary from case-to-case basis; hence an exhaustive list of factors in the legislation itself will further widen the liberal versus strict approach divide, thus allowing the disruptor to escape regulatory intervention.

The concept of the geographic market also cannot be defined in concrete terms due to the broad scope of the internet, which transcends boundaries. The business models are complex and multi-sided, where (usually) one side may be subsidized or free, which is monetized through other sides say advertisements, upgraded premium sides, amongst other factors. There is no cost yardstick to follow here because, with more data, the dominance becomes entrenched, and the optimism regarding market self-correction fails; because of the low error costs of failing with artificial intelligence and machine learning²⁴ tools. Being dominant is not anti-competitive by default, but abusing that dominant position in the "relevant market" is. The question is how the dominance is abused and finding reasonable justifications for the same, which is not possible with the current framework envisaged in the Act. If the relevant market itself is difficult to gauge, there is susceptibility to errors and the creation of false positives or false negatives, deepening the existing challenges of competition regulation.

Competition regulatory agencies in India are wary because they do not want to over-enforce as that may lead to throttling innovation cycles and restricting dynamic efficiency. However, at the same time, under-enforcement has its peculiar challenges²⁵ , which may invite entrenchment of dominance and unfair market conditions. Think of a poorly constructed ladder where the first rail needs the climber to be extra cautious because if too much pressure is applied, then the entire ladder will dismantle. Now using the same analogy to a market definition in competition law assessment, if the first step does not happen in a careful and relevant manner, then the whole assessment exercise is rendered futile.

2. THE REGULATOR WORRY

The competition regulator in India, i.e., Competition Commission of India (in short "CCI") is a multi-functioning body that performs several functions such as investigation, adjudication, administration, advocacy, and most importantly, it has an inquisitorial role²⁶. The Act is a special legislation that deals with many sectors and diversified market structures that are continuously changing. CCI is thus required to acclimatize with the changing pace and market structures and assume a broad based role. Quite recently, CCI devoted and materialized research efforts for examining existing regulatory gaps and grey areas, especially in new age-markets marked by the presence of disruptors. The regulator worry is evident in terms of the 2019 expert committee report published by CCI ("Report")²⁷ and findings of the 2020 market study report on e-commerce ("Market Study").²⁸

3. DEVELOPMENTS AND RECOMMENDATIONS-CCI

The issues relating to market definitions and ancillary concerns arising from "fast-developing new age markets"²⁹ are solidified in the Report read together with the Market Study, as discussed below.

• S 19 (6), which gives forth factors for defining "relevant geographic market," the Report recommended the inclusion of elements like "characteristics of goods and services"³⁰ and "costs associated with switching supply/demand to other areas"³¹ for digital markets.³² While these additions are essential, there is a need to realize that geographic dimensions of the relevant market cannot be defined strictly in dynamic internet-driven markets. The definition of the geographic market in the "Google Android" case bears testimony to this fact.

• The Report recommended improving the factors of relevant product market under S 19 (7) by including "switching costs"³³ and "categories of consumers"³⁴; as they add value for developing a feasible product market definition for multi-sided platforms.³⁵ This kind of clarity for understanding how network externalities work and inter- relationships that exist between different customer groups on various segments is essential.³⁶ While this is a welcome move, but other crucial factors such as "competitive conditions and structure of supply and demand,"³⁷as mentioned in the

"Google Android" case, missed out from being discussed in the Report. The recommendations would have been more relevant if references from landmark case laws dealt exhaustively with overseas competition agencies were drawn.

• Anti-competitive agreements under S 3 of the Act include horizontal agreements under S 3 (3) where AAEC is assumed per se and vertical agreements under S 3 (4) where proof of AAEC through the rule of reason analysis is required (discussed above). This definition should be expanded to take into account other kinds of agreements that do not strictly fulfill the ingredients mentioned in these categories. This expansion will enable the regulator to apply a reasoned approach which warrants the rule of reason analysis, even if the agreements do not qualify as a horizontal or vertical one in a strict sense.³⁸ Strict categorisation and nomenclature in digital markets can potentially serve as a loophole in the Act. A better understanding can then divert to how, for instance, MFN (most favoured nation) or price parity clauses affect market conditions or how is the given conduct/practice

Another example of overlapping definitions is the unique kind of information exchanges and collusions that takes place in digital markets. The available competition jurisprudence on traditional collusive practices such as bid-rigging cases cannot be applied here. Circumstantial evidence and red flags in the form of physical meetings, econometric analysis, traditional price tests such as SSNIP (small but significant non-transitory increase in price) etc. serves no purpose for digital markets where data analytics and "algorithmic collisions"³⁹ occur. While this form of market sharing or collusive practices (horizontal restraint) may indeed exist, due to lack of information, these may appear as a vertical restraint where AAEC analysis may pose several challenges (such as balancing innovation trade-offs).

• Rule of reason analysis for AAEC given under S 19 (3) of the Act is where a tick-box approach is adopted, and CCI has to assess whether the anti-competitive effects outweigh the pro-competitive effects, as discussed above. The Report recommends that the AAEC factors mentioned therein need widening to include elements of new markets and business models.⁴⁰ It particularly suggests truncating S 19 (3) (c), which currently reads as "foreclosure of competition by hindering entry into the market" as foreclosure of competition.⁴¹It emanates from a realization that in some instances, there may be foreclosure of competition through other business strategies, which has further been dealt in the subsequent sections.

• Complementarity between offline and online channels needs to be better understood. The Market Study pointed out how offline stores (popularly called "brick-and-mortar retailers"⁴²) are also going online for sales generation. The supplementary nature depends on a case-to-case basis, such as for fashion needs is considered as complementary. In contrast, for exclusive online launches such as certain smartphones, it may not be supplementary.⁴³

• It recommended the amendment of the term resale price maintenance ("RPM"), which is a form of a vertical anti-competitive agreement under S 3 (4) (e), to cover both direct and indirect RPM.⁴⁴ Indirect RPM will help in including non-price factors by providing ground to assess self-preferencing strategies, "parity clauses,"⁴⁵ restrictive business terms etc. within this category.

• CCI also recommended re-assessing the factors of abuse of dominant position under S 4 (2) that inter-alia covers exclusionary and exploitative abuses such as denying access to markets, leveraging, restriction of goods and services or "technical or scientific development" etc. to make it more usable by incorporating an "effects- based approach."⁴⁶ At present, the factors of abuse do not answer as to how it qualifies as abuse and in what manner competition in the relevant market is affected.

• The Report recommends that S 4 (2) (e), which talks about leveraging and reads as "its dominant position in one relevant market to enter into or protect another relevant market," needs to be re-phrased⁴⁷. It recommended adding the word "associated" for the market sought to be leveraged, as it felt that a causal link was necessary for leveraging.⁴⁸ While this recommendation got ultimately rejected, the illustration used in the Report of a traditional market scenario revealed inconsistencies. It spoke about protecting non-associated market expansion as this will lower the incentives of competition by saying that what if an oil refining company decides to expand to the telecom sector. This narrow example as used in the Report does not hold relevance to new markets where disruptors such as Amazon feed their R&D efforts through data learning techniques, AI technologies, data insights, etc. from not only the consumers but also their intermediaries, which can potentially harm the market in the long run.

"the house brand 'slept quietly as it retained data about other sellers' successes."⁴⁹

In data-driven markets where the nature of resources (data/AI technologies, etc.) are not comparatively visible than traditional goods and services, causal links can be hard to establish in the absence of a useful framework. Hence, there is a growing need to enhance the existing structure accordingly. The Report also suggested boosting the office of the DG by drawing in experts⁵⁰ that will also enable the development and interpretation of sector-specific regulations from a competition law perspective, especially for digital platforms.⁵¹ The Competition Commission of India (Procedure for Engagement of Experts and Professionals) Regulations, 2009,⁵² under the Act provides sufficient ground for the same.

Considering the points mentioned above and the various technicalities involved in digital markets such as data mining⁵³, data masking⁵⁴, network effects, lock-in effects, interoperability concerns, etc., there is a need to draft and implement specific regulations for digital markets under S 64 of the Act. Too many additions in the Act itself will lead to anomalies because traditional markets still exist, so mixing up the two will not be pragmatic.

2. UNDERSTANDING THE ROLE OF BUSINESS MODELS

1. NEW MARKETS DISCOURSE

The new market discourse created by disruptors such as Google depicts its consistency in being an unmatchable incumbent for search-based services, amongst others. Such platforms that enjoy competitive advantages due to its extensive network (scope) insulating its position are often referred to as "Economies of Scope."⁵⁵ This scope is the capacity to operate on different segments and create niche markets stems from various means such as the collection of data through AI, machine learning, network locked in users, large user base, restrictive covenants, and access conditions, etc.. These factors can potentially work to the detriment of the market economy without a regulatory framework.

For evolving an understanding of the competitive conditions of such disruptors, it is crucial to assess its business structure and accordingly judge its conduct qualitatively. If the regulator looks into superficial structure and justifications coloured as "objective justifications" or if insufficient market forecasts are relied upon, then errors will naturally ensue. The test of substitutability or interchangeability, which is used in the "relevant product market" definition, needs to be supplemented with new approaches that consider perceptions of not only the end consumers on one market segment but varied customer group categories, such as intermediaries/suppliers/advertisers/publishers, as the case may be.

In Matrimony.com Ltd and Ors v Google LLC and Ors ("Google I")⁵⁶ case, for analyzing whether Google has abused its dominance, the DG defined two relevant product markets as the market for online web search service in India and market for online search advertising in India, applying the test of substitutability. The online advertising market was demarcated into an online search advertising market and online non-search advertising market based on differentiating characteristics such as user clicking behaviour, calculation of revenue i.e., cost/click basis for online search ads and cost per thousand impression basis for online non- search ads, and purpose. CCI by separating online and offline markets as being distinct categories based on factors such as internet users in the country (perception that not everyone uses the internet in India), monitoring levels (preciseness more in online ads), level of engagement, etc. misunderstood complementarity as substitutability. An analysis of Google's contention stating that DG did not take into consideration the perception of an advertiser⁵⁷ into context, is quite relevant. The term interchangeability or substitutability used in the definition of a "relevant product market" under S 2 (t) is from the perspective of a consumer, which has a broader meaning in the Act versus the Consumer Protection Act, 1986. So how is that an advertiser who avails the service⁵⁸ of the newspaper or the internet platform for displaying or publishing its ads, not a consumer? The definition of a consumer under the Act is wide enough to analyze such varied consumer groups and take their perceptions into account. There is no bar that stops an advertiser for running ads on both online and offline platforms simultaneously. The same consumer also uses online platforms and reads offline print media at the same time. Even though the rate of return on investment (ROI) that an advertiser looks into may vary along with other commercial variables. However, that does not mean these product markets are distinct and not interdependent.

In the pursuit of defining product markets narrowly, flawed approaches may be adopted because it helps in solidifying the abusive conduct on the part of the respondent(s), something like a shortcut to the complex market definition exercise. Also, the DG's reasoned analysis for delineating a separate relevant product market for "online search ads" was strikingly similar to the "Microsoft/Yahoo Search Business"⁵⁹ case decided in 2010 (almost seven years ago than Google I) by the European Commission ("EC"). This aspect highlights less homework on the part of the investigation wing. It is relevant to note that in Google I, the Federal Trade Commission (FTC) Staff Report dated 08.08.2012, which was presented by CONSIM, was discussed by the CCI. The Report stated that Google had manipulated SERP to its advantage, but the CCI did not place reliance upon this document. Even Google admitted that the SERP results were not always free-floating and had "certain fixed positions" before 2010, meaning that the same was not strictly determined by relevance. However, CCI took the self-correcting nature of Google in its favour and gave a clean chit to it on this score.

In Re: Umar Javeed and Ors v Google LLC and Ors ("Google II")⁶⁰, CCI defined the relevant product market as "the market for licensable mobile operating systems" in the relevant geographic market of India. In Google II, Google sought to leverage its position in the mobile OS market by imposing restrictive conditions in agreements with manufacturers, etc. compulsorily tying the entire Google Mobile Suite ("GMS") as a mandatory covenant. CCI prima-facie found that Google was leveraging its position by compulsorily tying in its GMS and giving no choice to the third parties than to accept the same. While Google inter alia pleaded that the alleged restrictive covenants in the agreements with manufacturers, developers, etc. were necessary to avoid any software incompatibilities. However, CCI negated this argument and ordered further investigation under the Act.

The allegations leveled by the complainants in Google II bears similarity with the "Google Android"⁶¹ decision by the EU, where a careful assessment of Googles business model was done. By looking at the mandatory requirement of a Gmail account to operate Play Store to how other third parties are dependent on its operating system, the Commission rightly pointed out Google's audience-seeking-strategy for charting out more advertisement revenue in its deep pockets.⁶² The "relevant geographic market" identified in the "Google Android decision" was taken to be "worldwide excluding China," while in Google II, CCI limited it to India. It points out the broader connotation of homogeneity in the definition of "relevant geographic market" under S 2 (s). The word used in S 2(s) is "distinctly homogenous," which, in the literal sense, cannot be applied in digital dynamic markets where homogeneity refers to sufficiently similar rather than being identical. It is also quite surprising that the Act, which borrows significantly from the European competition literature, fails to incorporate landmark case findings involving the same player, i.e., Google and similar merits, in its geographic market definition.

In Federation of Hotel & Restaurant Associations of India ("FHRAI") v MakeMyTrip India Pvt Ltd ("MMT") and Others⁶³ ("FHRAI-MMT") dealing with S 3 and 4 allegations against MMT-GoIbibo⁶⁴ ("Go"). Anti-competitive allegations were leveled on MMTGo inter-alia on the grounds of inclusion of MFN clauses in across platform parity agreements (APPA), predatory pricing, forced exit strategies, deep discounting, misrepresentations to end users by continuing to display delisted hotels which were no longer a part of their contractual arrangements on MMT-Go platform⁶⁵. In this case, CCI determined the "relevant market" as the "market for online intermediation services for booking of hotels in India"⁶⁶ and found a prima-facie case to exist against MMT-Go under S 4 and S 3(4) of the Act.

Recently, the FHRAI-MMT case was clubbed together with Rubtub Solutions Pvt Ltd (operated Treebo platform) v MMT⁶⁷ ("FHRAI-Treebo-MMTGo") vide CCI order dated 24 Feb 2020⁶⁸ wherein abuse of dominance allegations under S 4 (2) were leveled against MMT-Go by Treebo. Treebo alleged absolute exclusionary and exploitative restrictions imposed on it through its commercial contracts with OYO such as "chain agreement,"⁶⁹ denying market access to Treebo by locking its properties from being available to Booking.com and PayTM on its platform 72 hours or 3 days before the date of check-in for "Category A" (areas which attracted most tourists) hotels under the "Exclusivity Agreement."⁷⁰ CCI did not separately determine the "relevant market" in this case and used the same "relevant market" defined in FHRAI-MMT as these two cases shared similarities.

The FHRAI-MMT-Treebo matter indicates the overlaps between horizontal and vertical integration of business models and unfair parity clauses, causing AAEC. While these now clubbed matters are still under investigation, a similar case decided by the Bundeskartellamt (competition regulator agency of Germany) can potentially serve as a tool for guidance. In Booking.com BV and Anr v HRS- Hotel Reservation Service Robert Ragge GmBH and Ors ("Booking.com case")⁷¹ decided by Bundeskartellamt, the "relevant market" was determined as the "market for intermediary services of the hotel portals." It is important to recognize that parity clauses as MFN are often defended by businesses as a shield to the "free-riding" issue, where considerable resources are spent by them to give the intermediaries the kind of quality that would incentivize their business. However, these justifications can be taken far too ahead as a possible shield to their anti-competitive conduct. In what manner can this be avoided, is where Booking.com case comes handy and helps in understanding such issues pragmatically;

• Carefully analysing the practical effects (in India, analysis of AAEC) of the agreements, commercial understandings, etc. in question and linking it to the alleged anti-competitive conduct in question. In Booking.com case, the effect of narrow best price clauses was analysed through a"what if" scenario. That is assessing whether there no other "reasonable" way to act than through the imposition of such clauses. This exercise will place the justifications offered by the respondents from a practical standpoint, also called a counterfactual-test.

• The market freedom of not only the respondent has to be seen but also how the intermediaries or potential competitors' market freedom is being affected by the former's conduct.⁷²

• For understanding the link between different markets in a more concrete sense, a functional substitutability test⁷³ was followed in this case, i.e., in what manner the functions of the say revenue side depend on the free/subsidized side. The causal reference helps in gauging the indirect network effects of the particular platform more specifically.

• Respondents in most cases consistently argue for a broader market definition (to wriggle out of the dominance allegation) such as including offline channels etc. within the market contours; that sometimes leads to false-negative situations by perceiving a narrow market as broad. In this case, the respondents argued that meta- search engines and other specific portals should also be included for a market determination as they exercise competitive pressures.⁷⁴ These contentions under a test of "actual substitutability," revealed whether the alleged competitive pressures could transform such platforms as actual substitutes. The answer was in the negative, also referred to as "alternatives' paradox."

2. STATIC APPROACHES- DYNAMIC MARKETS

"Delineation of relevant market is based on market realities as they exist at the time of assessment. In rapidly changing markets in particular, market assessment cannot have a static approach (emphasis added)."⁷⁵

Measurement of value in revenue or cost basis is not the correct way to approach the market structures created by disruptive platforms. A users value notion in accessing or using a platform is subjective and varies across the consumer categories such as advertisers, intermediaries, suppliers or buyers. But holistically the value delivered to the given business model is huge in the form of data analytics and user information.⁷⁶ Under the garb of providing free services or highly subsidised services, a platform can engage in anticompetitive practices and conduct through leveraging tactics and driving user traffic via algorithms (amongst other unique factors). This further highlights why potential competition aspect or a "prospective analysis of dynamic competition"⁷⁷ is needed to be looked at in detail for dynamic market assessments. This aspect means looking at the business model from the inception to see how the future market dynamics were anticipated by the given platform in question. Simply put, seeing "the future as it was seen by the parties at the time of the conduct."⁷⁸

Dynamic markets create complexities that vary from a case-to-case basis. The traditional competition assessments such as SSNIP (small but significant non-transitory increase in price) test cannot be applied, as data and scale are the major factors driving such markets. For instance, in FHRAI-MMT-Treebo matter, which is pending investigation, artificial demand and supply chains were allegedly created by such anti-competitive practices. The dependency of consumers through the network (through the number of users on that platform) and lock-in effects (inherent inability to switch) occurs by being accustomed to the interface, features, accessibility options, format, etc. The user becomes accustomed to the interface, features, accessibility options, format, etc. which works as a lock-in effect,⁷⁹thereby helping the platform to improve quality standards by consistent real-time feedback, especially when the user base is high that helps in making better updates.

These technicalities help in understanding what value should be attached to the arguments raised by the respondents during market definition exercise, eg. Google in the "Google Android" case asserted that default settings could be changed easily where a user is free to select any other web browser apart from the default Chrome. The question is, will the users actually change it, given such effects. In this manner, the appraisal of actual substitutability from the demand-side happens in a better way. The "the-winner-takes-all" phenomenon gets reinforced as potential competition lags due to such direct and indirect network externalities, scale effects, and vast pools of data already accessed by such platforms.⁸⁰ Scale achieved through data is commoditized, which no other incumbent or entrant can practically perform.⁸¹ In a hypothetical situation assuming there are no barriers for entry of new players, the question is what are the switching costs and individual incentives existing in the mind of an average consumer whose 'used to' the platform say an Android phone or Google Chrome browser.

With big giants scaling up operations taking examples of Google, Amazon, Uber, Zomato, etc. and enhancing investor value via private equity and venture capital and rise in competition complaints. It becomes crucial to look at what investor considerations and probable investment preferences occur while dealing with such complex models, which can serve as sound cues for devising a useful framework.⁸² In Mega Cabs Pvt Ltd v ANI Technologies Pvt Ltd⁸³, CCI stated that the investment route is equally accessible to all, which reveals a static approach not suitable to disruptive markets where other business considerations exist. It is relevant to know what business models attract more investments for understanding how and why specific business structures have the upper hand and how the competition is affected detrimentally.

The static approach adopted by CCI in approving the combination of Wal-mart International Holdings Pvt Ltd by the acquisition of substantial shares of Flipkart Pvt Ltd⁸⁴ ("Walmart/Flipkart") is evident when it presumes that no AAEC is likely to be caused by saying on the one hand that competition is free for all as there is 100?I under the automatic route in the "marketplace model of e-commerce." On the other hand, when it came to assessing concerns from representations alleging deep discounting and manipulation of prices by Flipkart, CCI said that it fell into the FDI policy domain⁸⁵ unrelated to the present case and went ahead to approve the combination. The horizontal and vertical overlaps existing between Flipkart and Wal-Mart were discussed in a limited sense wherein the current market shares of different products were seen, such as for Flipkart's primary segment is mobiles/electronics. On the other hand, Wal-Mart has groceries as a central segment (majority segments being different). Based on this limited approach, it concluded that the market structure remained unaltered. CCI did not discuss what product segments were likely to be introduced by the proposed combination for actual AAEC analysis in the foreseeable market structure.⁸⁶While the spirit of the Act gives a broad-based role for competition regulation, CCI, in its decisional practice, continues to assert its limited position, which breeds fertile ground for anti-competitive conduct in the market.

As discussed above, the market definition in disruptive markets is a tricky exercise, and the tendency to define markets narrowly does not solve the broader issue. Due to the dynamism of markets, a new course of market delineation needs to be adopted, which keeps the broad reach of the internet in context or market definition be left open, which has been done by Bundeskartellamt (Facebook decision)⁸⁷. Even if presently no headway can be drawn about disruptor business strategy, a "market for attention"⁸⁸ can be delineated based on the user base, temporal factors, etc.⁸⁹

3. MAPPING THE FUTURE COURSE OF ACTION

Modern economy's growing complexities in the functioning of disruptors in digital markets, innovation cycles, and unique dynamics are a cause of concern for competition regulators worldwide. Unlike traditional markets, the "the-one-size-fits-all" straitjacket approach cannot apply here. While the disruptors create new markets, which no doubt enhances output, quality, consumer welfare, and efficiencies, but how to sustain the consumer welfare aspect remains a blur. The unequal bargaining power levels of a supplier or intermediary in such a platform and entrenchment through anti-competitive conduct is a common contention in almost all cases discussed in this paper. OECD puts forth a critical suggestion, which is to not to overemphasize de-concentration but to correct anti-competitive behaviour by weakening the barriers or finding creative ways to offset concentration for inhibiting "market tipping."⁹⁰For instance, through inter-operability (to allow easy switching to platforms), multi-homing, remedial measures (Bundeskartellamt Amazon case⁹¹) etc.

In MCX Stock Exchange Ltd v National Stock Exchange (NSE) of India Ltd and Others⁹² (MCX/NSE case) CCI considered the essential nature of its application programming interface code (NSE platform) whereby the zero pricing strategy in its currency derivative market held as destructive in nature.⁹³ NSE superficially created a nascent market by cross-subsidizing from its other monopolized segments⁹⁴ , which were taken note of by the CCI. The kind of business strategy analysis done by CCI in this case, back in 2011, reveals the assessment risks posed by new markets that need attention. The intention is not to suppress the innovation or incentives to innovate but to regulate the market, by analyzing how such markets work and the nature of resources/infrastructure it needs.

The OECD debates on new market regulatory approaches, point out the difficulties in categorizing anti-competitive conduct object wise (where per se restriction applies) and effect wise (where the rule of reason applies) and ancillary issues. For instance, what if there is a genuine "free-rider" issue if a per se restriction is applied, then how will the respondent justify it?⁹⁵ There may be other business rationales that do not fit the per se restriction at all.

Hence, there is a growing concern to re-analyze and look at what approach is the most suitable one. The role of business models is crucial to map out the future course, and therefore, structure analysis precedes the assessment of conduct. Too much emphasis on conduct and identifying the type of abuse (like it happens in India) does not solve the underlying issue because the question as to "how the abuse affects the consumer and the economy in the long run" remains unanswered.

1. CHICAGO DILEMMA

The Chicago school gained prominence after the USA's Department of Justice and the Federal Trade Commission introduced guidelines applicable to vertical restraints adopting an outcome-based approach and lessening the previous rigors on vertical restraints.⁹⁶ The Chicago school did not see concentration as a problem ("big is not always bad") and considered its decisive role in terms of increasing consumer and economic efficiencies, bringing product improvements, etc.⁹⁷ It views entry barriers in a limited manner by ignoring various advantages enjoyed by incumbents as the requisite "costs of demands of production and distribution."⁹⁸ It believes that eventually, market forces will discipline the market on its own⁹⁹ which is a very narrow approach to begin with.

On the other hand, Harvard school of competition law that focussed on "structure-conduct- performance" approach is crucial in the context of disruptive business models. This school primarily asserts the importance of how concentrated business structures are problematic, as they disturb competition equilibrium. Though this approach, if applied strictly, led to various blanket restrictions on even the efficiency based models. Complete abandonment of the structural approach advocated by Harvard school also creates new issues that solely focus on consumer welfare standards and efficiencies, creating new gray areas for anticompetitive conduct and practices.¹⁰⁰This aspect has been highlighted by the works of Tim Wu, Lina Khan and others, under the neo-brandeisian antitrust school of competition law.¹⁰¹

Overemphasizing consumer welfare and overlooking the structural aspect creates a fallacy of sorts. In this way, AAEC analysis is done in a vacuum by mechanically applying competition law rules and regulations, not studying the dependent variables such as intermediaries, long term business plans, consumer harm tendencies, etc. The best example of this is the Quidsi- Amazon case, where first Amazon pressurized Quidsi (owner of diapers dot com) to sell the venture to Amazon. Upon refusal, Amazon started engaging in predatory pricing and other "notorious" strategies (Amazon mom category rolled out) that impacted Quidsi to the extent that it forced into considering a sale and lost investor confidence.¹⁰² Despite Wal-Mart giving Quidsi a better offer, interestingly, Quidsi eventually struck a deal with Amazon, mainly due to the tactical measures adopted by Amazon executives.¹⁰³

The idea of consumer welfare needs to be broadened by looking at both micro and macro factors, micro level includes how consumer data is collected per different categories of consumers on a platform and see if this is generating consumer welfare or causing consumer harm. Instead of drawing narrow specific markets which do not reflect actual market realities, it is better to look at what kind of market attention is in play¹⁰⁴. This approach amongst other, reflect the neo-brandesian hipster antitrust school advocated by Lina Khan, Tim Wu and others, particularly relevant in disruptive innovation driven markets. This school of competition law evaluates the effect of under-enforcement of competition law in dynamic technology markets.¹⁰⁵

Blinded reliance on the Chicago school approach creates a loophole by helping platforms that rely on the consumer welfare argument and not indicating in black and white how consumer welfare is enhanced when they are practically foreclosing competition through such strategizing.¹⁰⁶Sectoral-specific regulation should be the first step, followed by the overall competitive assessment by the competition authorities. These cues can be taken from Competition Commission of India v Bharti Airtel Limited and Others¹⁰⁷, where the apex court held that the questions should first be decided the Telecom Regulatory Authority of India (TRAI) empowered under the special act of 1997. Once that is done, CCI steps in to assume its role as a competition regulator. It is criticized that incorporating new regime rules and regulations in the existing competition legislation will lead to various glitches because of swiftly moving dynamic markets (Jones and Sufrin).¹⁰⁸ However, taking guidance from the Bharti Airtel case, such regulations can be incorporated in the special legislation already existing in India, such as the Information Technology Act, 2000, and upcoming data protection laws and regulations (which are currently in bill stage). Accordingly, a stepwise approach, as taken in Bharti Airtel case, can be then applied.

Online e-commerce platforms may be viewed as akin to natural monopolies, that needs to be regulated by a robust and competent authority to prevent abuse of dominance. Instead of limiting the construction of natural monopolies to railways, telecom network and other government monopolies, a similar approach can be taken for disruptive models. Disruptive models, if they display "natural monopoly characteristics," can be regulated similarly with requisite changes deemed fit.¹⁰⁹ There are differing views on platforms being akin to natural monopolies considering their pervasive network effects and "ability to drive markets"¹¹⁰in the European Union itself. However, in my view, supporting OECD Background note¹¹¹ analysis, considering platforms as natural monopolies to a limited extent and applying regulation where necessary, can reap more benefits than opposing such a similar treatment.¹¹² The question is, "how that industry be made to operate in a way that is beneficial to society as a whole?"¹¹³

2. CONCLUSION- THE WAY AHEAD

Instead of looking solely at the consumer welfare paradigm, competition regulation should holistically view the peculiar facts and circumstances coupled with the business structure at hand. It may seem that specific effects considered individually may not seem problematic, however "cumulative effects"¹¹⁴ as an example regarding the impact on intermediaries, business conduct, counterfactual assessments for business justifications, etc. help in improving qualitative assessment of vertical agreements. These cumulative effects refer to how a particular business model is tipping the market through manipulation of its customers and entire gamut of intermediaries present in it owing to its ever increasing user base. It is essential to delve into detail as to the rationale behind mergers of big platforms and measure the realities in the context of answering whether the given efficiency can be without the merger, e.g., inter-operability agreements, transaction-specific agreements, etc.¹¹⁵

Against the peculiar nature of the case laws referred above, an exhaustive list of factors or regular assessment tools cannot be adopted for analyzing competition. Even while establishing a causal relationship between the conduct in question and its effects, a meaningful link should be established. Suppose there are price-parity clauses in question to insulate a platform from a genuine free-rider issue on the one hand. On the other hand, a platform is using the free-rider argument as a business justification so that it continues to use such negative covenants, ultimately pushing viable competitors out of the market. In order to discern between these two situations, it is important to establish right causal links. These links help in understanding the product and geographic market dimensions and identifying how wide or narrow the market realistically is.

In Google I striking similarities were observed with the definition of relevant product market of online search advertising when compared with the Microsoft/Yahoo search business case. While in Google II which is currently under investigation, the geographic market was delineated as India instead of worldwide excluding China as done in Google Android decision, despite having similar merits. These cherry-picking tendencies will lead to absurdities and challenges for competition regulation. If CCI is attempting to determine relevant markets differently than decided cases, then a reasoned approach as to why it did not follow say the EU definition or the FTC analysis should be given out (justify the departure?).¹¹⁶ This allows legal certainty, which is absent from the current competition regime in India.

Instead of shunning away from dealing with other laws such as data protection, foreign direct investment, consumer protection etc., it is important to understand the growing convergence of special laws when it comes to digital platforms. Even if the goals and ultimate objective of such laws are different, nevertheless there is a need to understand their inter-relationship. The Bundeskartellamt (Germany) noted the same while deciding the anti-competitive allegations against Facebook.¹¹⁷ For understanding whether privacy preference options given by Facebook gave users real control to change permissions, Bundeskartellamt noted that the ultimate control rested with Facebook itself which falls within anti-competitive conduct.¹¹⁸ Within Europe itself, the regulation varies such as Germany decided the Facebook case via Bundeskartellamt (competition framework) while Italy decided the Facebook case under its consumer code via AGCM.¹¹⁹ This shows that regulation of digital markets is complex more particularly with the intersection of special laws viz consumer code, data protection laws etc.

The idea of markets self-correcting nature in the context of disruptive digital platforms does not hold water as there are infinite opportunities and loopholes to engage in anti-competitive conduct coupled with the pervasive network effects and entry barriers. The intensity of such factors disallow any potential entrant from entering the given market. The potential entrant refers to not only the horizontal competitor(s) in the same level of market, for instance say Google versus a new search engine. But also vertical competitor(s) eg. publishers, advertisers, suppliers etc. who are left with no choice apart from acceding to the onerous business terms or arrangements strategized by the disruptor. This is why complex assessments of how the market works needs to be included within the first step of the market definition inquiry.

Even though innovation needs to be fostered and dynamic efficiency should grow, however competition regulators need to identify and explore the risky business models and strategies that destroys competition. If that identification is itself missing and markets are delineated mechanically then more leeway is automatically granted through regulation itself. Even if it is difficult to assess economic and qualitative data technology effects, another route is to go to the nomenclature of the commercial understandings.¹²⁰ Refer to the recitals, the intention of the parties, roles and obligations, market surveys, business plan identification, and sophisticated qualitative tools by involving expert panelists etc.¹²¹ that may offer better cues than a complex economic or data related assessment. Without focusing on development of useful precedents of market delineation in disruptive models, competition regulation falters.

BIBLIOGRAPHY

PRIMARY SOURCES Legislation and Case Laws

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REPORTS

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