The Delhi High Court has refused to grant relief to Google in its writ petition against the Competition Commission of India (CCI) for the alleged leak of an interim fact-finding report that found Google abusive of its Android dominance. Google is protesting against the breach of confidence and is seeking a stay on the breach. It says the incident impairs Google’s ability to defend itself and harms Google and its partners.
The Fact-Finding Report
In 2019, CCI launched an investigation into Google’s business practices after receiving a complaint. After a two-year-long investigation, CCI concluded that Google was guilty of stifling competition and innovation. It says that Google forces device makers and app developers to sign one-sided contracts that help Google maintain its grip and dominance in search, music (through YouTube), Browser (Chrome), app library (Play Store), and other key services.
Further, the contracts mandate that any manufacturer wanting to go beyond the stock Android version must sign a Mobile Application Distribution Agreement (MADA) and an Anti- Fragmentation Agreement (AFA)/ Android Compatibility Commitment (ACC).
These agreements require pre-loading of Google apps and pre-determined placement on devices. The report says the mandatory pre-installation of apps “amounts to imposition of unfair condition on the device manufacturers.”
The CCI was yet to send the report to Google in order to give a final chance of defence.
The Confidentiality Regime
The Competition Law of India has a confidentiality regime that prohibits the CCI from making public any information with regard to a proceeding. The proceedings are only open to parties involved. Section 57 of the Competition Act, 2002 says:
“No information relating to any enterprise, being an information which has been obtained by or on behalf of the Commission or the Appellate Tribunal for the purposes of this Act, shall, without the previous permission in writing of the enterprise, be disclosed otherwise than in compliance with or for the purposes of this Act or any other law for the time being in force”.
Google’s and CCI’s Arguments
Commenting on the petition, a Google spokesperson said:
“We are deeply concerned that the Director General’s Report, which contains our confidential information in an ongoing case, was leaked to the media while in the CCI’s custody. Protecting confidential information is fundamental to any governmental investigation, and we are pursuing our legal right to seek redress and prevent any further unlawful disclosures”.
Appearing before the Court, Sr. Adv. Dr. A.M. Singhvi submitted that there is a violation of confidentiality by CCI and that “everyday this leak is happening”, Lawbeat reported. He said that the report is in exclusive possession of the Director-General of CCI and no other party could have leaked it. He argued that the anti-trust regulator was leaking information like a sieve while asking Google to go on a wild goose chase and sue the media which couldn’t have published anything without any leak.
The CCI asked the court to interfere in the case. It said that the incident will send a completely wrong signal about the regulator, and will frustrate the proceedings.
The court held that the report should be kept confidential as per the law. A single-judge bench of Justice Rekha Palli said that if at all there is a leak of confidential information then it should be probed.
The court observed that it can’t pass orders without looking at the report, and adjourned the hearing for September 27th.
“Advise your client”
While submitting that the CCI did not leak the report, Additional Solicitor General N Venkataraman told the court that a senior officer from Google’s California office had written a “threatening letter” to CCI’s Chairman. The Chairman is also the adjudicatory authority in the case.
Mr. Venkataraman quoted the letter and read, “those who may have facilitated the unlawful release of the DG report.”
The court took an exception to the issue and remarked, “Advise your client. Just because he is there (in California)..he should know that if you want to function in a country, he has to know the law.” The court also said that Google could have instead communicated with the Registry.
Update: CCI accepts Google’s request to maintain confidentiality
28th September 2020 (01: 56 p.m.)
The Competition Commission yesterday agreed to keep confidential the information that Google provided during the investigation, in order to expedite the proceedings. CCI also agreed to set up a panel to enquire into Google’s allegation, PTI reported.
Google’s counsel stated in the court the if the CCI is bound by its statement, its grievance stands addressed. Ultimately, the Court dismissed the petition without expressing any opinion on the issue.