[Draft] iamai submission to Committee on Digital Competition Law

Bundling & Tying 

	SIDI should not force business users or end users to subscribe to, or register with, any further services as a condition for being able to use, access, sign up for, or registering with any of that platform's core platform service.	Article 5(8) - The gatekeeper shall not require business users or end users to subscribe to, or register with, any further core platform services listed in the designation decision pursuant to Article 3(9) or which meet the thresholds in Article 3(2), point (b), as a condition for being able to use, access, sign up for or registering with any of that gatekeeper’s core platform services listed pursuant to that Article.
Self-Preferencing/ Platform Neutrality
	SIDI must not favour its own ‘offers’ over the ‘offers’ of its competitors when mediating access to supply and sales markets when (i) presenting its own offers in a more favourable manner; and (ii) exclusively pre-installing its own ‘offers’ on devices or integrating them in any other way in offers provided by the platform.	None
Anti-steering
	SIDI should not condition access to the platform or provide a preferred status or placement on the platform on the purchase or use of product/service offered by the platform that are not part of or intrinsic to the platform.	Article 5(7) - The gatekeeper shall not require end users to use, or business users to use, to offer, or to interoperate with, an identification service, a web browser engine or a payment service, or technical services that support the provision of payment services, such as payment systems for in-app purchases, of that gatekeeper in the context of services provided by the business users using that gatekeeper’s core platform services.

1^ The Recommendation of the Council on Regulatory Policy and Governance adopted by the OECD on 22 March 2012 note that it is necessary to have clearly articulated regulatory policy goals, strategies and benefits critical for regulatory policymaking.

2^ Some of the ACPs are also covered by other laws or proposed law. For e.g., the ACPs in relation to data may be addressed by an appropriate data protection law.

3^ See, para 1.13, page 5; para 1.15, page 6; para 1.17, page 7 of the Report.

4^ See, paras 1.3 to 1.7, page 2-3; para 1, page 31 of the Report.

5^ Competition Commission of India’s study on e-commerce sector, available at: https://cci.gov.in/economics-research/market-studies/details/18/6

6^ Impact assessments are recognized to be a precondition before designing new regulation. For e.g., Executive Order (E.O.) 12866, which was issued in 1993, requires federal agencies in the United States to consider the costs and benefits of certain regulations that are expected to have large economic effects. See, Congressional Research Service, Cost-Benefit Analysis in Federal Agency Rulemaking, 8 March 2022. Available at: https://crsreports.congress.gov/product/pdf/IF/IF12058#:~:text=Cost%2Dbenefit%20analysis%20involves%20describing,and%20otherwise%20in%20qualitative%20terms.

7^ The Report’s notes that by the time anti-competitive behaviours can be adjudicated, markets can tip in one direction and a winner emerges.

8^ Impact assessment and stakeholder consultations have been carried out in other jurisdictions where similar regulations have been introduced. For e.g., See, European Commission, Directorate-General for Communications Networks, Content and Technology, Sunderland, J., Herrera, F., Esteves, S., et al., Digital Markets Act : impact assessment support study : executive summary and synthesis report, Publications Office, 2020.

9^ See, https://data.worldbank.org/indicator/IT.NET.USER.ZS?name_desc=false.

10^ See Statista, Micro, small and medium enterprises as a share of GDP across India from financial year 2012 to 2021. Available at: https://www.statista.com/statistics/912576/india-msmes-contribution-share-to-gdp/#:~:text=Micro%2C%20small%20and%20medium%20enterprises,country's%20GDP%20in%20recent%20years.

11^ See Statista, Advertising revenue in India in 2021, by medium. Available at: https://www.statista.com/statistics/233501/advertising-revenue-in-india-by-type/.

12^ Statement of Objects and Reasons, Competition Act, 2002.

13^ Carl Shapiro, Antitrust in a Time of Populism (October 24, 2017). Available at SSRN: https://ssrn.com/abstract=3058345 or http://dx.doi.org/10.2139/ssrn.3058345.

14^ See ‘A new pro-competition regime for digital markets’. Available at:
https://www.gov.uk/government/consultations/a-new-pro-competition-regime-for-digital-markets.

15^ See ‘White Paper on Competition Policy in the Digital Economy’. Available at
https://www.ftc.gov.tw/internet/english/doc/docDetail.aspx?uid=179&docid=17352.

16^ See, https://www.cccs.gov.sg/resources/publications/market-studies

17^ Ibid.

18^ See, https://www.cccs.gov.sg/resources/publications/occasional-research-papers/pdpc-cccs-data-portability

19^ See JFTC press release Market Study Report on Mobile OS and Mobile App Distribution. Available at: https://www.jftc.go.jp/en/pressreleases/yearly-2023/February/230209.html. Other topics have included digital advertising, cloud services and B2B transactions on online retail markets and app stores.

20^ An English summary of the Headquarters for Digital Market Competition’s interim report of its Competition Assessment of the Mobile Ecosystem is available:
https://www.kantei.go.jp/jp/singi/digitalmarket/pdf_e/documents_22220601.pdf.

21^ See Digital Platform Services 2020-25. Available at: https://www.accc.gov.au/focus-areas/inquiries-ongoing/digital-platform-services-inquiry-2020-25. Topics studied to date include online retail marketplaces, search services, web browsers and digital platforms.

22^ Recitals 36 and 37 of the DMA state that, “To ensure that gatekeepers do not unfairly undermine the contestability of core platform services, gatekeepers should enable end users to freely choose to opt-in to such data processing and sign-in practices by offering a less personalised but equivalent alternative... At the time of giving consent, and only where applicable, the end user should be informed that not giving consent can lead to a less personalised offer...”

23^ See, ET Brand Equity, India fastest growing market in ad spends: GroupM India TYNY 2022. Available at: https://brandequity.economictimes.indiatimes.com/news/research/india-fastest-growing-market-in-ad-spends-groupm-india-tyny-2022/89587504.

24^ See, Global Data, TV Advertisement Market Size in Europe (2017–2021, $ Billion). Available at: https://www.globaldata.com/data-insights/technology--media-and-telecom/tv-advertisement-market-size-in-europe/ (The market for TV advertisements in Europe stood at $31 billion in 2021.)

25^ See, Iabuk, AdEx: Digital ad spend in Europe grows by 30% in 2021. Available at: https://www.iabuk.com/news-article/adex-digital-ad-spend-europe-grows-30-2021.

26^ See, Statista, Digital advertising revenue in India 2018-2024. Available at: https://www.statista.com/statistics/233493/india-digital-ad-revenue/.

27^ Matrimony.com Limited v. Google LLC & Others, Case No. 7 of 2012. 

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