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Digital Markets: Upcoming Changes In Global And Domestic Jurisprudence

Digital technology has become an extremely important element in our lives and is now even further deeply seated in our day-to-day activities due to the onset of the Covid-19 world pandemic. A plethora of daily tasks and functions have transitioned to the online digital sphere such as office work, daily communication and purchasing goods amongst a myriad of other things. With increasing importance of this sphere certain legal questions also arise around the medium such as protecting the data of consumers and businesses, legal liability around information posted on various platforms et cetera.

This paper shall however limit itself to the legal questions and problems arising around the operation of digital online platforms in the backdrop of competition law and focus on metrics such as market power, online dominance in a digital eco system and various possible anti-competitive behaviors that can ensue in the digital forum. It would behoove us to know that the 10 largest technology companies in terms of accumulated market capitalization are valued over 10 trillion US dollars.[1]

In addition to the same, the world bank as well has showcased that the digital economy now stands at an evaluation of 15.5% of the global Gross Domestic Product (GDP), with a growth rate that is 2.5 times faster than the growth the global GDP in the last 15 years.[2] We can therefore surmise the urgency of addressing anti-competitive issues in the digital space which is gaining utmost importance in contemporary times.

It is needless to say the 'Big Tech' companies have amassed a lot of competitive power which has to be regulated by Anti-Trust competition laws by entities such as the Federal trade commission (FTC) and the Justice department's Antitrust Division (DOJ) in the United States alongside the European Commission in Europe and the Competition Commission of India (CCI) in India. In the recent years there have been a myriad of litigation cases against Big Tech companies such as Google, Apple, Facebook, Amazon et cetera.

The United States and the European Union are introducing new legislative proposals to better address the ever evolving and dynamic digital markets; however, India has however not proposed any new legislations. This paper shall explore the current anti-trust doctrine in European Union, the United States, alongside discussing and comparing the new legislative proposals of the European Union and the United States and separately looking at India's tussle with digital markets by discussing recent CCI judgements.

The Need for Separate Regulation
Due to characteristics of the digital market such as self-preferencing, exclusive access to data, network and lock in effects creating high entry barriers, vertical integrations and price cutting there arise some concerns which the current traditional antitrust laws are ill-equipped to address.[3] A platform starts to become dominant in its own digital eco system due to the network and lock-in effects of a service.

Ergo, a higher number of users of a platform creates a large customer base which then goes on to create an inherent preference for a platform which has the most prominent and dominant network.[4] This leads to exponential growth of the platform without any guarantee of increase in quality of the service provided by a platform and also increases the market costs.[5]

The increased market costs would now require high investments from new platforms for building their own brand against the dominant network platform and data collection by the new platform to stand the chance of functioning in a digital market.[6]

Business users also have a dependency on a platform with the largest customer base and creates a dependency on the platforms service to sell their own products or services to the end users in cases where the platform itself would act as in intermediary.[7]

An example of the same can be the Amazon platform on which multiple business users are dependent on for selling their own products due to Amazons large customer base. Taking advantage of this dependency platforms such as Amazon can then further create dominance across other sectors.[8] For example, Amazon has entered the online entertainment market creating its own music app 'Amazon Music' and Over-the-Top platforms such as 'Amazon Prime'.

In another scenario, companies also compete alongside the product of the platform on which they are selling their own products and or services. In such a case, platforms can be seen practicing self-preferencing, in which they , by using data of the competitors' sales are able to better customize their own services and products towards a customer's needs in order to gain a competitive advantage.[9] The data of the competing companies help the platform to avoid failures and disadvantageous strategies which leads to unfair competition between the products of the platform itself vis a vis the products and services of the companies using the said platform.[10]

The Current Legal Frameworks and Their Drawbacks
The European Union, under article 101 of the 'Treaty on the functioning of the European Union' (TFEU), emphasizes on prohibiting agreements which are anti-competitive due to restricting preventing or distorting competition in the single market. It further prohibits abuse of a dominant position by any market player under Article 102 of the TFEU, regulates merger control under the European Council Merger Regulation, with an ex-post case by case analysis approach.

The current regime has been recognized to be ill-equipped to address digital market concerns on multiple fronts.

Firstly, the online platforms are dynamic and multisided, due to which they are diversified into multiple markets. The current law triggers intervention in only one defined narrow relevant market at a time.

Secondly, many companies have online platforms which produce anti-competitive behavior but do not fit the contours of the present definition of dominance.[11]

Thirdly, the European Commission only triggers investigation when the abuse of dominance has taken place by the time of which a great deal of damage has already ensued.[12] Fourthly, a high threshold of evidence in the TFEU calls for a detailed case by case analysis to prove an alleged misconduct in which online platforms seem to evade scrutiny.[13]

Lastly, some national antitrust laws of member states have different thresholds which causes inefficiency in addressing the anti-trust practices of the online platforms of these Big Tech companies which function in a cross-border fashion.[14]

In the United States, the 'Sherman Act'[15] prohibits formation of cartels and monopolizing illegally under Section 1 and 2 of the said Act. Merger control is assessed under the 'Clayton Act'[16] and the 'Federal Trade Commission Act'[17]. The United States antitrust doctrine stems from the Chicago school and focuses on consumer welfare and short-term efficiency in market practice.[18] The current law of the United States is also not able to adequately address digital market concerns.

Firstly, much like the European Union laws, in the United States also the anti-trust laws apply once a violation or anticompetitive act has occurred, that is in an ex-post fashion rather than addressing the concern in its nascent stage.[19] The network effects of a platform or company do not come under scrutiny if there exists a possibility of competition for a dominant position,[20] but only when it becomes a case of "winner-takes-all"[21].

The outdated presumption of predatory pricing is unable to capture the modern price cutting strategies of the companies with multisided online platforms due to which they evade scrutiny.[22] Digital market platforms by the virtue of being in multiple markets are able to undergo losses for a very long duration for building their dominance in a digital market space by using profits from digital markets in which they are well established and the same is not captured in the understanding of predatory pricing in section 2 of the Sherman Act, which requires losses to be incurred in a short time span and in the same relevant market.[23]

Lastly, much like the European anti-trust laws, the US anti-trust laws also have a high threshold of evidence for proving anti-competitive behavior due to which companies are able to evade scrutiny. For example, the US anti-trust laws built on the bedrock of the Chicago school would not prohibit certain mergers due to the understanding that vertical integration increases competitive efficiency.[24]

Upcoming Legislative Proposals
With the above discussion it is now clear that the antitrust doctrines of both the European Union and the United States are outdated, rendering them incapable of addressing dynamic and evolving concerns of Big Tech companies and their online platforms.[25] Therefore to address these concerns both the European Union and the United States have set out to introduce new legislative proposals in order to deal with the problems at hand.

European Union
The Digital markets Act is a legislative proposal of the European Union which will act in congruence with the existing European anti-trust laws,[26] is expected to come into effect by the year 2023 and will specifically address the concerns of the digital online sphere.[27] The proposal introduces a new legal concept of a "gatekeeper" to classify online platforms which have formidable control in their respective digital eco systems.

Under the Digital Markets Act a gatekeeper has been defined under Article 3 as company platforms which have significant impact on internal market with presence in a minimum of 3 member states,[28] act as intermediaries connecting at least ten thousand business users to forty-five million customers or end users in the previous financial year,[29]and an entrenched and durable position by virtue of having a turnover of more than 6.5 billion and meeting all the criteria for the previous 3 years.[30]

Once these criteria are met a company is presumed to be a gatekeeper, and the onus of rebutting this presumption lies with the company that has been classified as a gatekeeper under Article 3(3) of the Digital Markets Act. Apart from these assessment criteria, a company can be presumed to be a gatekeeper by a case-by-case analysis through market investigation conducted by the Commission under Article 3(6).[31] In market investigations the Commission will assess on factors such as entry barriers due to network effects, leveraging potential and market capitalization amongst other market characteristics.[32]

Once a company platform is established as a gatekeeper it has to follow two lists of obligations under Article 5 and Article 6 in an ex-ante fashion. In terms of positive obligations, a Gatekeeper has to grant access to user data, create interoperability with the gatekeepers' service or product, allow for business users to be able to connect with customers found on the gatekeepers' platform via external mediums and have transparency in the advertising amongst other things.[33]

In terms of prohibitions a gatekeeper is prohibited from preventing users to uninstall preinstalled apps, self-preferencing, preventing customers from connect with business users from outside mediums amongst other things. The two lists ensure in an ex-ante fashion which to act before an anticompetitive behavior has occurred, that a gatekeeper does not exploit its dominance without affecting a gatekeeper ability to enjoy its economies of scale.[34]

Some of the other relevant articles in the Digital Markets Act are Article 10, 16, 18,20,21,24, 26 and 27 which would be required to be understood to better understand the application of the said Act.

Under Article 10 the Commission can introduce new obligations to tackle future anticompetitive concerns that can arise due to the ever-evolving nature of digital market sphere, alongside granting more remedial powers under Article 18, the ability to access and request information under Article 20, conduct physical inspection under Article 21 and monitor the compliance of a gatekeeper with the two lists under Article 5 and 6 under power prescribed to the Commission with Article 24. In the event of non-compliance by a gatekeeper there are provisions for fining the company under Article 26, Article 27, and structural remedies under Article 16 of the Digital Markets Act.

The United States
A bill[35] was introduced in the United States on the 4th of February 2021 under the titular name of Competition & Antitrust Law Enforcement Reform Act (CALERA) to reform assessment criteria of exclusionary conduct and merger control by proposing to introduce a plethora of changes, such shifting the burden of proof, protecting whistleblowers, reducing the analytical threshold, mitigating the importance of defining a relevant market in currently functioning the Sherman act, Federal Trade Commission Act and the Clayton Act as well.

The Bill proposes to reduce the legal test to "creating an appreciable risk of materially lessening competition"[36] from the earlier legal test of "substantial lessening of Competition"[37] under Section 7 of the Clayton Act. The change in phraseology from the earlier "substantial" to simply "material" significantly reduces the high threshold of the earlier legal test.

In terms of shifting the burden of proof, now certain acts of merger are to be presumed to be illegal in cases where, companies with more than 50% market share acquire a competitor, the merger causes a "significant increase in market concentration"[38], when the value of a merger crosses 50 million US dollars between companies that are together valued over 100 billion US dollars and when a transaction surpasses a value of 5 billion US dollars.[39]

This can be seen to be a shift towards more structural analysis than the earlier consumer welfare approach under the Chicago School, the assumptions of which have been now argued to create inefficiency in enforcing antitrust doctrines.[40] The shift in standard under Section 7 of the Clayton Act as mentioned above, has been proposed to catch anticompetitive behavior in its nascent stages.[41]

Section 9 in CALERA seeks to introduce Section 26A into the Clayton Act which would in the case of exclusionary practices involving a company which has "significant market power" or more than 50% market share will add a presumption of "appreciable risk of harming competition".[42] In cases where the Section 26A is not applicable, Section 9 of CALERA clarifies that there can also be a 'circumstances test' factoring in structural considerations to assess whether a conduct is harming competition. CALERA also seeks to reduce the importance of defining a relevant market which is stipulated under Section 7 of the Clayton Act and section 1 and 2 of the Sherman Act.[43]

However section 4(3) of CALERA reintroduces the term "relevant market" reintroducing its significance in assessing antitrust cases.[44] CALERA also seeks it increase funding for creating expert panels, better investigations and better the functioning of enforcement agencies.[45] Lastly, in the event of non-compliance there have been made provision for civil penalties under Section 9(b) and 10(a) of CALERA.

Comparison of the European Union and the United States
On the face of things, as can be assessed from the above discussions, CALERA is an update on the previous anti-trust laws such as the Sherman Act, clayton Act and Federal Trade Commission Act In the United States, while the Digital Market Act is set to act in compliance with the European anti-trust laws such as Articles 101 and 102 of the TFEU alongside the EC merger Regulation as propounded by Article 1(6) of this legislative proposal. Moreover, CALERA finds application in all market sectors whereas, the scope of application of the Digital Markets Act in the European Union is solely limited to gatekeepers.[46]

Furthermore, the Digital markets Act obligates ex ante, which is before the anticompetitive behavior has occurred, two lists under its article 5 and 6 which are to be followed by those who are presumed to be gatekeepers. On the other hand, even though CALERA seeks to tackle harmful mergers in the nascent stages under Section 2(b)(2) of the said Act, it is still, with its changes and additions to existing anti-trust laws dependent on a courts case-by-case analysis in an ex-post fashion after the anticompetitive behavior has occurred.

Hence one can surmise that the Digital markets Act by eliminating the cumbersome process of the case-by-case analysis in the court post anticompetitive behavior occurring, will deliver faster results than CALERA.

Both Legislations have are grounded in presumptions of anticompetitive behavior in certain cases and propose to shift the burden of proof on the impugned company and its online market platform. The Digital Markets Act presumes an online platform to be a gatekeeper under Article 3, when they have a significant impact on the internal market, connect business users to end users and have an entrenched and durable position in the market, whereas CALERA presumes ant-competitiveness of mergers in cases where, companies with more than 50% market share acquire a competitor, the merger causes a "significant increase in market concentration", when the value of a merger crosses 50 million US dollars between companies that are together valued over 100 billion US dollars and when a transaction surpasses a value of 5 billion US dollars.

Both legislations do away with relying on single relevant market definition, albeit CALERA reintroduces defining a relevant market under section 4(3) within the presumption of a merger being anti-competitive and burden of proof being brought forth. Lastly, both legislations are strengthening the existing institutions tackling anti-trust issues with the United States increasing funding of creating expert panels and improving investigations and the European Union centralizing enforcement powers due to the cross-border nature of digital markets.

India and Big Tech
The impugned Big Tech firms such as Apple[47]and Amazon[48], alongside 'Facebook and Google'[49] have faced antitrust scrutiny on account of adversely affect competition in both the European Union and the United States. It is common knowledge that due to India lacking its own jurisprudence in the realm of competition law, the CCI predominantly relies on the jurisprudence of the United States and the European Union.

Therefore, in India, Big Tech firms have come under the radar of the CCI under similar circumstances as well. For example, the Rubtub Solutions case[50] which deals with online travel agents, had Treebo alleging that Make My Trip (MMT) had abused its dominant position in the relevant market of 'online intermediation services for booking hotels in India' by denying Treebo access to its large online customers. This is a case of network effects in which customers prefer the platform with the most dominant network which in this case is the online platform of MMT.

Denial of access to the customer base would then require platforms such as Treebo to build their own brand and create their own data collection against dominant platforms such as MMT which can only be done by high market investments and such a situation adversely affects competition. In the Harshita Chawla case[51] the CCI dealt with online social media platforms WhatsApp and held the integration of WhatsApp Pay (Wpay) into WhatsApp Messenger chat services as a case of Tying of the two products.

In the Delhi Vyapar Mahasangh case[52] in the CCI dealt with e-commerce platforms such as Amazon and Flipkart which were engaging in acts of deep discounting, self-preferencing and exclusive tie-ups. Moreover, a myriad of cases were dealt against Google, with the Big Tech company being fined 20.42 million pounds in the Matrimony.com vs Google case[53] for abusing its dominant position by self-preferencing its own Google services in the Google Search facility in 2018.

In 2019 the CCI held an investigation against Google for tying and bundling, in the Mr. Umar Javeed vs Google case[54] wherein Google was asking manufacturers to exclusively preinstall the Google Mobile Suit and various other Google services in the Licensable operating system market. Most recently in the 2020, CCI ordered an investigation against Google for self-preferencing and favoring its own apps in the Play Store and Android Operating System market against other competing apps in this segment.[55]

All of the above highlighted concerns are also dealt with under obligations and prohibitions of Article 5 and Article 6 of the Digital Markets Act.
Furthermore, with these rising concerns the CCI has produced market studies in the merger and acquisitions segment of digital markets as well in order to identify and discourage potential anti-competitive behavior in online digital platforms.[56] In these market studies a great deal of attention has been to the uniqueness of the characteristics of digital markets and the need for immediate enforcement as delay in action leads to irretrievable harm.[57]

The chairperson heading this discussion explained that "These problems are not attributable to the conduct of any one company and are reflected in phenomena such as: (i) excessive concentration in a sector; (ii) high entry barriers; (iii) lack of access to data etc. The incentive to engage in anti-competitive conducts partly arises as the platforms are the ones who determine the rules according to which users, including consumers, business users and providers of complementary services, interact on it.

Thus, in digital markets certain business restrictions may be needed to preserve, protect and facilitate competition and to ensure that platform rules do not impede competition without objective justification."[58]

The CCI in its 'e-commerce market study'[59] recommended "Promoting transparency to create incentive for competition and to reduce information asymmetry"[60], and observed that "Network effects coupled with even small actions by the platforms may exclude and marginalise rivals"[61] amongst other factors which imbalance bargaining power of market players. The CCI has in recognition of the same recommended certain self-regulatory measures such as Search ranking, Collection, use and sharing of data user review and rating mechanism, Revision in contract terms and a discount policy.

'Search ranking' would require a platform to set out main ranking parameters in its terms and conditions. 'Collection, use and sharing of data' would require transparency in relation to the Data collected by the platform and its usage by third parties and related entities. 'User review and rating mechanism' would require transparency in the review and rating mechanism of a platform to insure informational symmetry.

'Revision in contract terms' would require a platform to notify its business users about any changes that have been proposes in the said platforms terms and conditions, alongside providing. Reasonable and proportionate time to enforce the envisage changes for a concerned business user of the platform. 'Discount Policy' requires bringing out clear and transparent policies in relation to discounts rates that are provided by the platform for its products and suppliers alongside illustrating the implications of a user of the platform in participating or not participating in the provided discount schemes.

Furthermore, much like the United States and the European Union strengthening its existing institutions with increasing funding for expert panels, improving investigation in the United States and centralising powers in the European Union due to cross-border nature of digital markets, the CCI in India is also soon to be strengthened as well.

The Indian government in the monsoon session of its parliament is set to revamp CCI t better tackle the antitrust issues of the digital sector.[62] The ministry of corporate affairs is set to make appropriate amendments to the Competition act,2002 and strengthen the powers of the CCI.[63] It is possible for these changes to be in sync with the change in global jurisprudence.

Overall, it is abundantly clear that Indian digital markets have faced unfair practices by the online platforms of the Big Tech Firms. Much like the European Union's consensus one can understand that to better tackle the issue of online digital markets, alongside the proposes self-regulatory mechanism some scholars have also argued for the need of ex-ante regulation in formulation of assessment of online digital platforms in India as well.[64]

Conclusion
Both the European Union and the United States have a common objective at hand which is to mitigate anti-trust issues in the digital market sector against the Big Tech companies across the globe. Assessing from the asymmetries and symmetries listed in the preceding paragraphs of the paper, one can deduce that the approach of the Digital Markets Act is more head strong due to its ex-ante implementation as opposed to CALERA still being ground in the case-by-case court analysis which is an ex-post implementation.

It can be for this reason argued that the Digital Markets Act will be better equipped to deal with Big Tech companies and their anticompetitive behaviors creating a more overall competitive market in the Single Market of the European Union. Lastly, India while paying heed to domestic policy considerations as the self-regulations proposed by the CCI's e-commerce report, should also promptly inculcate the global jurisprudence to be better equipped to tackle anticompetitive behavior in its nascent stages in the online digital markets sphere with upcoming changes in the country monsoon parliamentary session.

End-Notes:
[1] Paul Mozer et. al, A Global Tipping Point for Reining in Tech Has Arrived, NY Times 2021.
[2] The World Bank, Digital Development, available at https://www.worldbank.org/en/topic/digitaldevelopment/overview#1 2022.
[3] K. Sabeel Rahman, Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities, 2 Georgetown Law Technology Review, 234-251, 2018.
[4] Lina Khan, Amazon's Antitrust Paradox, 126 Yale Law Journal, 710-805 (2017).
[5] Id, page 785.
[6] Id, page 772-74.
[7] Id, page 755.
[8] Id, page 774.
[9] Id, page 754.
[10] Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 281 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980).
[11] The proposed Digital Markets Act, COM/2020/842 final available at https://ec.europa.eu/info/sites/default/files/proposal-regulation-single-market-digital-services-digital-services-act_en.pdf page 15.
[12] Id, page 3-4.
[13] Supra Note 11, page 3-4.
[14] Supra Note 11, page 4.
[15] Sherman Antitrust Act, 1890.
[16] Clayton Act, 1950.
[17] Federal Trade Commission Act, 1914.
[18] Daniel Rubinfeld, Antitrust Policy, International Encyclopedia of the Social and Behavioural Sciences. SCIS. 553, 555 (2001).
[19] Brown Shoe Co., v. United States, 370 U.S. 294, 317, 322 (1962).
[20] Richard Posner, Antitrust in the New Economy, 68 ANTITRUST L.J. 925-927 (2001).
[21] Luciano Floridi, The Fight for Digital Sovereignty: What It Is, and Why It Matters, Especially for the EU, 33 Philosophy & Technology, 369-378 (2020).
[22] Carl Shapiro, Antitrust: What Went Wrong and How to Fix It, 35 Antitrust, 36-39 (2021), https://faculty.haas.berkeley.edu/shapiro/fixingantitrust.pdf.
[23] Supra Note 4.
[24] Supra Note 18.
[25] Randy Stutz, Antitrust, Dominant Firms, and Public Policy Problems: A Framework for Maximizing Success by Minimizing Uncertainty, SSRN Electronic Journal (2021).
[26] Supra Note 11, page 3.
[27] Kate Kaye, How a proposed antitrust law could rein in tech platforms with 'long overdue' enforcement money Digiday, https://digiday.com/media/proposed-antitrust-law-could-rein-in-tech-platforms.
[28] Supra Note 11, Recitals 17, 21.
[29] Id, Article 3(2)(b).
[30] Id, Article 3(2)(c) and 3(2) (a).
[31] Id, Article 3(6).
[32] Id, Article 3(6).
[33] Supra Note 10, Article 5.
[34] Michael Hirsh, Big Talk on Big Tech—but Little Action Foreign Policy, https://foreignpolicy.com/2021/04/06/big-tech-regulation-facebook-google-amazon-us-eu.
[35] Competition and Antitrust Law Enforcement Reform Act of 2021, Section 225.
[36] Id.
[37] Supra Note 16, Section 7.
[38] Supra Note 16, Section 7.
[39] Id.
[40] Id.
[41] Supra Note 35.
[42] Id.
[43] Id.
[44] Id.
[45] Supra Note 27.
[46] David McLaughlin & Ben Brody, Democrats Pitch Antitrust Revamp for 'Too Big to Fix' Deals Bloomberg, https://www.bloomberg.com/news/articles/2021-02-04/klobuchar-pitches-antitrust-reform-for-too-big-to-fix-mergers.
[47] Apple's App store rules, available at https://ec.europa.eu/commission/presscorner/detail/en/IP_20_1073.
[48] Antitrust: Amazon, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077.
[49] Steven Pearlstein, "Facebook and Google are our last chance to save the economy from monopolization", (2020).
[50] Rubtub Solutions Pvt. Ltd. V MakeMyTrip India Pvt. Ltd., available at https://www.cci.gov.in/sites/default/files/01-of-2020.pdf. (2020).
[51] Harshita Chawla v WhatsApp Inc., available at https://www.cci.gov.in/sites/default/files/15-of-2020.pdf. (2020).
[52]Delhi Vyapar Mahasangh v Flipkart Internet Private Limited and its affiliated entities and Amazon Seller Services Private Limited and its affiliated entities , available at https://www.cci.gov.in/sites/default/files/40-of-2019.pdf (2019).
[53] Matrimony.com Limited v. Google, available at http://www.cci.gov.in/sites/default/files/07%20%26%20%2030%20of%202012.pdf. (2018).
[54] Mr. Umar Javeed et al v Google, available at, https://www.cci.gov.in/sites/default/files/39-of-2018.pdf. (2018).
[55] XYZ vs Google, available at https://www.cci.gov.in/sites/default/files/07-of-2020.pdf. (2020).
[56] Mr. Ashok Kumar Gupta, "Regulating the Digital economy" (2020).
[57] Id.
[58] Id.
[59] Competition Commission of India, "Market Study on E-Commerce in India", available at http://www.cci.gov.in/sites/default/files/whats_newdocument/Market-study-on-e-Commerce-in-India.pdf. (2020)
[60] Id.
[61] Id.
[62] Gireesh Chandra Prasad " The Competition Commission of India and competition law may get a facelift soon" Livemint, available at https://www.livemint.com/politics/policy/cci-competition-law-over-haul-soon-11652384408536.html. (2022).
[63] Id.
[64] Vikas Kathura, "Ex-ante regulation for digital markets in India", ORF.

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