Competition regulator denies disclosing investigative report against Google


India’s Competition Commission on Friday denied disclosing any investigative report against Google during a hearing in the Delhi High Court.

Google should take legal action against newspapers that published stories based on the regulator’s investigation, Additional Solicitor General N Venkatraman told the high court. Google, he said, is trying to scuttle the deal and delay it for another few years.

The Times of India says it has exclusive access to the report, Venkatraman argued. “If they [Google] are so hurt they should press charges against ToI.”

Lead Attorney Abhishek Manu Singhvi appeared for Google and highlighted the privacy provisions under the law – Section 57 of the Competition Act and Regulation 35 of the Competition Commission of India (General) Regulations 2009 ).

Section 57 of the Competition Act imposes a restriction on the disclosure of any information obtained by the Commission for any purpose under the Competition Act. The section prohibits the sharing of such information without the prior written consent of the company to which the information relates.

Rule 35 allows any party to request the commission to maintain secrecy of any information which, if made public, may result in the disclosure of trade secrets or diminish the commercial value of the information.

To emphasize his point, Singhvi cited the earlier judgment of the High Court in the Ericsson case, in which it was held that the commission and its employees are bound to maintain secrecy over confidential information. In the event of negligence in maintaining the secrecy of confidential information, the commission cannot be shielded from a claim for loss or damage, had ruled the court.

The lead attorney pointed out that the DG’s report has been submitted to the commission and not even Google has access to it yet. If A and B have something, it is common sense where C will get it from, Singhvi said.

During the hearing, the additional solicitor general also read a letter written by a senior Google official to the chairman of the commission.

The bench observed that Google did not have to write to the contracting authority. But Google lawyers said the letter was written to the administration of the ICC, which is also headed by the president.

Google has sought a court injunction against any further publication based on the report. He also objected to parts of the report marked as confidential by the regulator’s investigative arm. About 50% of the report should have been marked as confidential, but the DG only granted confidential status to 10% of the report, Singhvi told the court.

The backstory

The investigation against Google was ordered by the TCC in April 2019. In its prima facie order, the regulator had noted that the mobile application distribution agreement that Google had signed with device manufacturers required them to pre-install the full suite of Google apps so you can pre-install any proprietary app from Google—Play Store.

The signing of the Android Compatibility Commitment was also an essential condition of the distribution agreement.

Since Play Store is a must-have application, the commercialization of Android devices may be limited if these agreements are not signed. The TCC found on its face that the mandatory pre-installation of the entire Google Mobile Services suite as part of the distribution agreement amounted to imposing unfair terms on device manufacturers.

And so, he led an investigation by the DG. It was the alleged leak of this investigative report that upset Google.

On September 18, the Times of India newspaper reported that the regulator’s investigative arm, the chief executive, had concluded that Google’s conduct was anti-competitive in mobile operating systems and related markets.

The investigation found Google India guilty of stifling competition and innovation to the detriment of the market as well as consumers in order to maintain its hold and dominance in search, music (via YouTube), browser (chrome) , the application library (Play Store) and other key services, reports the daily.

The news was later reported by Reuters.

The Competition Act promises confidentiality to entities under investigation by the ICC and gives them the right to claim, negotiate the non-disclosure of commercially sensitive information obtained in the course of an investigation by the DG.

Once the DG submits his report to the TCC, parties to an investigation have the opportunity to refute the findings. Only then does the regulator issue a final order.

The high court bench of Judge Rekha Palli will hear the case next Monday.


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