In India’s rapidly evolving digital landscape, the Committee on Digital Competition Law (CDCL) is right in calling for a separate digital competition legislation. Digital markets exhibit certain unique behaviours, and the prevailing competition law, the Competition Act, may not be equipped to cope with them. A feature of this space is its start-up dynamism, as well as the variety of unfair means deployed by Big Tech to raise barriers to entry in order to stifle competition. Google and Apple have been found guilty worldwide for anti-competitive practices on their app stores. In India, Google has leveraged the reach of its Playstore by erecting entry barriers, such as high fees, for Indian app developers which are dependent on the platform’s reach.

The Competition Commission of India, with its time-consuming processes, is unable to address these concerns with the agility required. As the report suggests, while a separate law is needed for the digital space, the CCI could do with some capacity building. A special bench in the National Company Law Appellate Tribunal can be set up. The digital panel’s recommendation for an ex-ante framework in the proposed law — which implies acting in anticipation of a problem, rather than later (ex-post) — is unexceptionable. Ex-post intervention by CCI may prove ineffective in arresting the creation of monopolies. The EU has been a pioneer in introducing ex-ante regulatory mechanism through the Digital Markets Act. In the UK, a draft Bill is already before Parliament, imposing preventive conduct requirements on ‘strategic market status’ entities. In the US, apart from the central antitrust laws, as many 12 Bills, proposed specifically for regulating competition in digital markets, are before the US Congress.

The draft digital competition Bill prepared by the CDCL proposes to empower users to freely adopt sideloading of apps and restrain players from placing restrictions on the downloading of apps from third party applications. This may not be to the liking of Google, Apple and other Big Tech companies. However, Apple has recently fallen in line to offer sideloading of Apps for its EU users. In fact, the draft Digital Competition Bill in India seeks to provide a legal stamp of approval for several non-monetary directions (including sideloading) given by the CCI against Google in both the Android as well as Play Store cases of October 2022.

However, the report falls short in addressing concerns of digital news publishers. They find themselves at a disadvantage when it comes to bargaining with tech giants for fair compensation for the advertising revenue generated from their content. The new digital competition law must include provisions that empower publishers to negotiate fair compensation with tech platforms. In sum, the panel’s report represents a significant step forward in promoting fair competition in India’s digital marketplace. It must address concerns of all stakeholders in the digital ecosystem.

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