[Draft] iamai submission to Committee on Digital Competition Law

4. Whether there are any concerns with the substantive obligations recommended by the Parliamentary Standing Committee on Finance
(i) Report fails to examine whether the ACPs are in fact “anti-competitive”
The Report proceeds on an assumption that the ACPs are in fact anti-competitive without any assessment which would merit such a designation under the CA.
More specifically, the Report failed to conduct any analysis to demonstrate the harm caused to competition by the alleged ACPs. The findings, observations and recommendations in the Report are not supported by any empirical or factual evidence. Moreover, the Report merely puts together the statements of different stakeholders (many of whom are biased and interested parties) without actually addressing or assessing the competing claims in those statements. As a result, the Report just provides a descriptive summary of potential problems that could arise. Lack of economic literature or factual evidence establishing the harm being caused to the competition in digital markets may have led to exaggeration of issues at hand.
Similarly, the Report failed to balance the pro-competitive and anti-competitive effects of the identified practices. The Indian competition law rests on the principle of consumer welfare and thereby, recognizes the benefits of balancing the pro-competitive and anti-competitive effects of a conduct. However, the Report fails to assess the competing claims in this regard. The Report also ignores objective justifications such as protecting users from harm or service integrity.
(ii) Recommendations relating to data

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  Need to regulate data by ex-ante regulations: The Report makes various recommendations about the collection and use of data by SIDIs. These recommendations come at a time when the Ministry of Electronics and Information Technology has published a draft of the Digital Personal Data Protection Bill, 2022 (DPDP Bill) which provides for an overarching framework for regulating processing of personal data. With a personal data protection law on the anvil, there is no need to further regulate the use of personal data by certain entities, through a different set of enforcement mechanisms on the same subject matter and overlapped areas of concern. The Digital Personal Data Protection Bill which has been drafted by the Government of India after extensive stakeholder consultations covers the rights and duties of the citizen on one hand and the obligations to use collected data lawfully of the ‘data fiduciary’ on the other hand. It also contains the duty of data fiduciaries (data controllers) and data processors, including requirements relating to the collection and processing of data, requirement to provide itemized notice containing information on the nature of data processed and purpose for such processing to ensure greater transparency for obtaining consent. It also empowers users to withdraw consent, correct, erase, access information about processing of their personal data.
  
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