App developers such as Epic Games, Indus OS, and MapmyIndia on March 16 told the National Company Law Appellate Tribunal (NCLAT) that Google’s policies preclude them from featuring in Android devices.
Intervening in Google’s appeal against the Competition Commission of India order holding that the tech giant abused its dominant position in the Android ecosystem, the developers argued that they are being driven to extinction because of Google’s policies.
Epic Games
Appearing for the American game developer, senior advocate Amit Sibal argued that it has been in operation for 30 years but has not been permitted on Google Play Store because of certain policies. He submitted that Epic Games has its own app store that it intends to introduce on Android. However, Google’s policy of not letting third-party app distributors in its Play Store denies it access to 98.47 percent of the mobile phone market.
Sibal argued that to download the Epic Games app directly, users will have to undertake 13 steps, a hurdle for the user, and creating inherent dissuasion, as a result of which the app is often not downloaded.
According to Sibal, Google Play Store has made itself the predominant avenue for the distribution of apps and actively discourages other app stores to be featured on Android devices. He argued that while Google imposes this condition citing security reasons, many apps on Google’s Play Store have malware that affects a device. “Their pretext to prevent malware is to advance their monopoly in the app store; there is no guarantee that Google Play Store is safer than other app stores,” he added.
Indus OS
The Indian smartphone application and content discovery platform based on Android argued that it nearly went out of business because of Google’s policies.
Representing the company, senior counsel Rajshekar Rao said, “Google is like the owner of a mall that has tie-ups with various products. The company says if you want to sell shoes, you will sell only the brand it approves. If you want to sell something else, it will be difficult to survive.”
Rao argued that Indus OS, which has 400,000 apps in regional languages on its app store, is now restricted to devices such as Samsung because Google did not feature it in its Play Store. Reading various provisions of the Competition Act, 2002, Rao said that the Competition Commission has the duty to eliminate anticompetitive practices and not the company itself.
MapmyIndia
MapmyIndia, an Indian technology company that builds digital map data, was established in 1995 and has been offering its consumers a mapping app since 2004. Representing the company, lawyer Abir Roy argued that Google’s policy ensured that the company was wiped out of the business-to-consumer (B2C) market.
He said that till 2009, the company had arrangements with original equipment manufacturers but with the advent and dominance of Android phones, the company was not permitted to survive due to Google Maps.
Roy argued that Google’s policies prevent competing apps from succeeding.
CCI’s concluding arguments
The CCI responded to Google’s queries on the right of the persons who initiated proceedings. The regulator argued that since Google’s case is of public importance, the right of a person to initiate proceedings is irrelevant.
On Google’s argument that the regulator’s investigation arm asked leading questions, the CCI submitted that no such questions were asked and that questions were framed in a way to ensure the truth was revealed. The CCI further argued that its order contains enough analysis and explanation for everything that was held against Google.
It concluded its arguments by stating that India is a hub for app developers and startups and with 98 percent market share, it was only duty-bound to see whether Google was indulging in any anti-competitive practices. Once it was found to be indulging in such practices, the regulator merely asked the company to mend its ways and did not penalise it unnecessarily.
Background of the case
In 2018, Android users alleged before the CCI that Google was abusing its dominant position in the mobile operating system-related market in contravention of the provisions of the Competition Act. It was alleged that Google asking device manufacturers to preinstall the entire GMS or Google Mobile Services suite under its Mobile Application Distribution Agreement or MADA was an unfair condition. The CCI subsequently ordered an investigation by the director general (DG) of its investigative arm on this issue.
The CCI in 2019 expressed a prima facie opinion that mandatory pre-installation of the entire GMS suite under MADA amounted to the imposition of unfair conditions on device manufacturers.
On October 20, 2022, the CCI, based on the DG’s report and other documents filed by both sides, concluded that Google was abusing its dominant position in multiple markets in the Android mobile device ecosystem.
It held that Google can neither force OEMs of smart devices to preinstall its apps nor restrict users from uninstalling such apps. It also asked the US-based company not to offer any incentives to OEMs to comply with its conditions.
Google moved the NCLAT in January but failed to get immediate relief. The company then approached the Supreme Court against the tribunal's decision. While the apex court refused to intervene in the case, it asked NCLAT to decide on the matter by March 31, 2023.
The tribunal began its hearing of the case on February 15 and is expected to reserve the case for judgment on March 17. Google is expected to make its concluding arguments on March 17
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