The Big Data and Dominance
The author, Aishwarya Gopakumar, recently completed her postgraduate studies in LL.M (with a specialisation in Corporate & Commercial Laws) from NALSAR University of Law, Hyderabad.
The Digital age has diluted the boundaries between antitrust and data protection. The magnitude of data available at the hands of online marketplaces has been worrisome from an antitrust point of view given that these companies wage extensive control over digital infrastructure which enables them to engage in self-preferencing and predatory pricing to the detriment of a healthy and competitive market. The present paper seeks to analyse this scenario against the backdrop of potential competition concerns and possibility of self regulation in mitigating the same.
The digital age has transformed global economies with the volume of data produced globally forecast to grow from 33 zettabytes in 2018 to 175 zettabytes in 2025.[1] Digitisation of content and close monitoring of online and offline activities leads to a large pool of data that can be exploited through data analytics and computer algorithms. A range of companies rely on the consumer data they collect from digital applications and internet to innovate and introduce new goods, services and business models. The use of consumer data also gives rise to concerns of privacy and consumer control over their data. In this backdrop, the interplay of data and competition law become imperative in the light of possibility of abuse of dominance. More significant questions pertain to whether access to data can be used to implement entry and expansion barriers against market participants, foreclosure of market, exclusive agreements that foreclose a competitor’s opportunity to procure the data etc.
The Competition Commission of India has observed that when online platforms operate as both a marketplace and a competitor on the marketplace, they have the incentive to leverage their control over the platform in favour of their own or preferred sellers or private label products to the disadvantage of other sellers on the platform, using mechanisms such as access to transaction data and ranking of search results.[2] While the access to data on the consumer’s side can facilitate targeted product recommendations, on the seller’s side, it may be detrimental to competition when the platform operator uses data to introduce private label or boost its own or related party sales. The dual role of platform operator may also give rise to ranking biases and lack of transparency. The dilemma of regulating platform driven digital businesses was addressed in the Competition Law Review Committee Report which recognised that the platform driven digital business is a new territory in competition policy across the world and requires careful treading as premature intervention may thwart the gains to consumers. Pertinently, the Committee had also recommended control over data as a factor for determining the dominant position. The onus is on the Competition Commission of India to decide this aspect on a case to case basis. Section 19(4)(m) provides ample leeway for the Commission to decide on the basis of any factor that it may consider relevant for inquiry in assessing whether an enterprise enjoys dominant position or not under Section 4 of the Act.
Pertinently, a primary allegation against Amazon Seller Services Private Limited in Case No. 09 of 2020 before the Competition Commission of India pertained to counterfeiting, unlicensed or unauthorised selling of products on the online market place at an aggressively slashed price than that of the original product. Another accusation was that it leveraged control on the digital platform in favour of its own preferred sellers by giving them a higher search ranking and enhanced customer reviews, much to the disadvantage of other sellers. The Commission in the instant case dismissed the allegations citing that the case does not invite antitrust scrutiny given the fact that the dominance of the opposite party was not established herein. Ironically, Amazon was effaced with an Antitrust Investigation by the United States Sub-Committee on Antitrust, Commercial and Administrative Law to examine the effects of online market power on innovation, entrepreneurship, data privacy and free & independent business in online marketplace. The Sub-Committee recognised that Amazon’s role as a platform operator of digital marketplace in competing with the sellers on the platform is fundamentally anti-competitive. Many questions posed at Mr. Jeffrey P. Bezos, Founder and Chief Operating Officer, Amazon relied on a Wall Street Journal report dated April 2020 revealing that Amazon’s employees have accessed and used data on independent sellers on its platform to develop competing products to drive out competition in the market. Amazon was also questioned on predatory pricing tactics by trying to undercut businesses of private label goods by cutting down its own prices. The European Commission (EC) has also initiated a formal investigation to assess whether use of sensitive data by Amazon from independent retailers is in breach of the competition rules of the European Union.[3] Antitrust regulators across the globe are closely scrutinising datafication and its potential antitrust concerns. The Market study undertaken by the Commission recommends that digital platform operators must transparently set forth terms and conditions of ranking parameters, policies on use and sharing of data collected by the platform, user review and rating mechanisms, discounting policies etc. Although big data has kept antitrust regulators on their toes, it is advisable that businesses resort to self-regulation in order to identify potential competition law concerns and risks and proactively streamline policies to ensure better compliance with legal requirements.
[1] European Commission (2020), A European strategy for data, https://ec.europa.eu/info/sites/info/files/communication-european-strategy-data19feb2020_en.pdf [2] Competition Commission of India, ‘Market Study on E-Commerce in India, Key Findings and Observations’, 08.01.2020, available at https://www.cci.gov.in/sites/default/files/whats_newdocument/Market-study-on-e-Commerce-in-India.pdf. [3] “EC opens formal investigation against Amazon” available at https://ec.europa.eu/commission/presscorner/detail/mt/ip_19_4291.