The enforcement of competition law in the digital market is the topic of
ongoing debate in the competition jurisprudence. As of now, the digital market
are more recent markets in which the traditional tools of competition law must
be understood and applied. Though the challenges of competition law enforcement
in digital marketing are numerous, this paper focuses on the evaluation of
dominance and abuse in the digital market that is e-commerce site is
particularly in the light of 2019 Supreme Court's decision in the Uber case1 .
The Supreme Court's decision that the loss-making pricing can be an indicator of
dominance contradicts the views of Competition Commission of India, which had
advised against the circular interpretation of dominance and puts the issue to
the rest. Along with the rapid technological advancement, the digital markets
have increased the ambit of relevant market and has rather become an alternative
The issue related to the traditional market delineation of relevant market
assessment of dominance and its abuse have been pushed to limits by the digital
market size and with the advent of this digital market it has become mandatory
to introduce the concept of network effects and data as a determinant of market
position. Furthermore, the enforcement of the competition law in the digital
market had been challenging for the entire competition law jurisdictions.
The Competition Commission of India's decision in digital market have been
quickly evolving with time and is commissioned by its own understanding about
these markets rather than following the jurisprudence laid by the Competition
Act 2002 and other jurisprudence from US and other competition law jurisdiction.
Also, the Competition Commission of India on January 8, 2020 had released its
market study on The E-Commerce platform in India wherein it has highlighted the
issues related to competition which might arise because of the digital markets
and has further described how the commission would examine such issues. As of
now, the competition issues which have been arising with respect to the E
Commerce site or the digital markets includes imposing of unfair prices,
exclusive agreements and providing heavy discounts to the customers. With
respect to these issues, the commission has observed that such issues can be
dealt under Section 4 which talks of abuse of dominance in the relevant market.
However, in order to deal with an issue as an abuse of dominance in the relevant
market under Section 4 of the Competition Act 2002 it is very important that the
enterprise or the E-Commerce site against which the issue of abuse has been
raised, is holding a dominant position in the relevant market. In order to deal
with this question, whether there has been an abuse of dominance in the digital
market, it becomes important to examine whether the digital market is a relevant
market and if it is then whether the enterprise was holding a dominant position
in the relevant market or not under the competition law.
The Concept Of Relevant Market In Competition Law
A relevant market is described as a market in which a particular good or service
is been sold. The Section 2� of the Competition Act 2002 states that a relevant
market may be defined with reference to the relevant product market or the
relevant geographical market of both. Further, Section 19 (6) and 19 (7) of the
Act states the factors which are essential for the consideration of the relevant
geographical and relevant product market respectively.
In comparison to the traditional markets like the stores and shops, the digital
markets or the e-commerce sites sell the same goods to the customers at a
comparatively lower price thereby forcing the stores to work hard to attract the
customer. As a result of this price fixing techniques, there exists a
competition between these two relevant markets. Further, over a long time it has
been a bigger question that whether the online market is a separate relevant
market or not. The Competition Commission through various cases has put forward
In the case of Mohit Manglani v Flipkart
2 , where the question was raised
that if a book is exclusively distributed through any form inside it is not
similar to another book distributed by the physical store hence making it a
separate relevant market. However, the Competition Commission of India was of
the opinion that individual product do not form a separate relevant market by
However, this position regarding the online market being a relevant market was
cleared in 2014 case of Mr Ashish Ahuja v Snapdeal
 , wherein the
court stated that the two markets are different in terms of discount which they
offer and the purchase experiences and that in such cases the customers have the
choice available in both the market to decide accordingly. Therefore, the two
markers are not distinct relevant market but are different channels of
distribution of a same product.
Furthermore, in the 2018 case the All-India Online Vendor Association v Flipkart
India Private Limited  , the Competition Commission of India tried to solve
the problem with respect to the relevant market wherein AIOVA had accused
Flipkart of abusing its dominant position in the market by permitting the
discount and giving special treatment to some sellers. The commission, in order
to deal with the question of abuse of dominance, firstly defined the relevant
market as services which are provided by the online marketplace platforms for
selling the goods in India.
The commission noted that in a digit market there are many market players and
despite of the fact that Flipkart has a high market size and resource available,
there cannot be any one player who holds a dominant position at the digit market
level. Therefore, the commission was of the opinion that since flipkart was not
dominant in the relevant market, no abuse of dominance occurred.
Data Related Issues In The Digital Market
Since the world is evolving rapidly there has been significant growth seen in
the digital market. Competition in the digital market has become a major focus
of the competition law, and policy framing with respect to all forms of online
platforms. That is why it is important to demonstrate the term of abuse of
dominance. No doubt in that digital markets to pose a challenge for the abuse of
dominance in enforcement.
There is requirement for the more extensive laws in such areas because there are
more chances that these digital markets can manifest more harm for which abuse
of dominance laws were designed is such way to prevent the same, in case the
competition authorities are unable to apply these prevention and prohibitions to
the digital market business model. It is matter of fact that the competition in
digital market has become one of the major focus when it comes to the
It is quite evident that the size of the digital firms and their importance has
much to do with their production towards the economy which particularly attracts
a significant attention. Talking about the competition law policy, the notion
that big is not bad is the core principle or the basis of competition policy.
But it is really important that firms size should be taken into consideration
and all the factors should be taken into consideration like a novel business
model, result of its own innovation or the size of the firm is large because of
the fact that it has more efficient operations. At the same time the size or the
growth of firm could be because of aggressive competition present in the market
and ultimately benefiting consumers and economic productivity of entire
territory at the more broader level. Whenever the question of abuse dominance
comes to the surface, all these factors are taken into the consideration.
Though there are certain strategies which have been identified by the
competition authorities which are generally used by the firms/dominant firms at
the market level in order to enhance and protect their market power. In case
there is no such innovation from these strategies then there is high possibility
that this will harm consumers and ultimately leading to economic damage as well.
Therefore, a proper determination is required to make sure that these digital
markets don't abuse their position. From Indian perspective one the biggest
challenges which tends to lie in the present context of the digital markets is
the formulation of proper remedies which are specifically pertaining to the
conduct of a digital markets.
Apart from this there is also problem with regards to the availability of
credible data which can eventually help in determination of dominance and
foreclosure/anti-competitive effects. The reason as why credibility is cannot be
ascertained is because of the fact that these digital firms tend to operate
globally and that is why it becomes difficult to get credible date or the
information for ascertaining market share.
Observing from the perspective of data abuse of dominance in digital market. In
order to have a strong hold on the relevance of data when it comes to internet
economy, it is very much important to understand that upto what extent a data
can actually means and its possible roles in the enforcement of the competition.
It's very much evident that data, always has been relevant in competition
analysis, it means that every piece of information can be termed as a data. This
has been held in the Hoffman-Ra Roche decision in 1979 as well that the firm had
a dominant position in that market because of its technical expertise which lead
to an advantage, inclusive of the highly developed customer information.
Now discussing from the Indian legal framework, it can be observed that there is
no framework or regulation which disable CCI for examining these data related
abused. Like in section 4(2)(a)(i) which allows CCI authorities to take any
action against any dominant enterprise which is found to be imposing unfair
conditions for collection of the data and there is no such restriction as to
what can amount to unfair condition within the ambit of the regulation.
Same goes with the section 4(2)(d) which gives authority to CCI to make an
enterprise held responsible and fix liability if in case it is providing
services with additional services and the unfair data processing (Here it is
referred to give consent or agree to certain obligation which violates the
customers/ who is availing services right to privacy).
The entire loophole does lies in the law specifically but the lack of robust
jurisprudence with regards to privacy and data protection in India with regards
to the European law. Another resolution can be adequately found by drawing
analysis between the other countries, it's a matter of fact that the
availability of digital services has quite often increased due to the on-going
pandemic. Therefore, it is very much pertinent to know that where does India
stands with respect governing tech firms' regulations.
The E-commerce market study done by the CCI has certainly raised several
concerns of Indian stakeholders, like platforms are not acting
impartial/unbiased way, imposing unfair contract conditions, exclusive
agreements and often deep accounts.
Though the CCI has been trying level best by ensuring a fairness in
digital market like CCI mentioned a need for the need for adopting a
model/paradigm approach by adopting self-regulation to ensure transparency by
showcasing all the details like its revision in contract terms, user review and
rating mechanism etc.
But still this form of model approach still falls short as compared to EU
suggested regulations which is in the form of Digital Market Act, the said law
will act as a gatekeeper for the online business platforms. At last, what is
required, and the resolution could be to adoption of more strict regulations for
digital business which can ensure good governance, accountability and fairness
for the consumers/users.
Therefore, through the emerging trends and case laws it is evident that the
Competition Commission of India's jurisdictional practice has evolved over the
time. Previously, where there was no clear indication of an enterprise holding a
dominant position, that is, then there was a lack of high market share of the
enterprise in the relevant market, the commission used to close the cases.
Furthermore, consumer welfare was also a factor that was taken into
consideration as the price fixing techniques and providing discounts were
beneficial for the customers. Nonetheless, CCI in the recent cases has taken
into cognizance the fact that the enterprises are sing the predatory pricing as
a business tactic and that by providing deep discounts and free services, they
are trying to drive out competitors. Further, the rise of big data has
undoubtedly resulted in the development of the new business opportunities that
would benefit the customers.
On one hand where the online market benefits the customers, on other hand it
also introduces a number of new challenges because of which the competition
authorities have to be cautious while dealing with such cases. Further, taking
note from the foreign anti- trust laws where mostly the natural monopoly exists,
the conduct of the enterprise to achieve this monopoly should be taken into
- Meru Travel Solutions Pvt. Ltd. v Uber India Systems Pvt. Ltd. & Ors.,
(Case No. 96 of 2015), order dated 14 July 2021
- Case No. 80 of 2014
- Case No. 17 of 2014
- Case No. 20 of 2018
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