Competition Regulator Denies Leaking Investigation Report Against Google
An accusation has been made against a government body without a word on how we are responsible, CCI tells court.
The Competition Commission of India on Friday denied leaking any investigation report against Google in a hearing before the Delhi High Court.
Google should approach the court against the newspapers which have carried reports based on the regulator's investigation, Additional Solicitor General N Venkatraman told the high court. Google, he said, is trying to frustrate the case and cause a delay of another few years.
An accusation has been made against a government body. Not a word in this whole affidavit showing how we have done it and where's the proof. There's not a word substantiating the claim how we are responsible.Additional Solicitor General N Venkatraman
The Times of India makes a statement that it has exclusive access to the report, Venkatraman argued. "If they [Google] are so injured, they should file a suit against ToI."
Senior Advocate Abhishek Manu Singhvi appeared for Google and pointed to confidentiality provisions under the law — Section 57 of Competition Act and Regulation 35 of the The Competition Commission of India (General) Regulations, 2009.
Section 57 of the Competition Act imposes a restriction on disclosure of any information which has been obtained by the commission for any purpose under the Competition Act. The section bars sharing of any such information without prior written consent of the enterprise to which the information relates to.
Regulation 35 allows any party to request the commission to maintain secrecy of any information which, if made public, may result in disclosure of trade secrets or diminish the commercial value of the information.
The CCI has the report. We do not have it but Reuters has it. What is the point then of the confidentiality requirement under Section 57 of Competition Act read with Regulation 35. There are leaks happening everyday.Senior Advocate Abhishek Manu Singhvi
To underscore his point, Singhvi cited the earlier high court judgment in Ericsson's case where it was held that the commission and its employees are obliged to maintain secrecy of confidential information. In case of negligence in maintaining the secrecy of the confidential information the commission may not be immune from claim of loss or damages, the court had held.
The senior advocate pointed out that the report by the DG was submitted to the commission and even Google does not have access to it as yet. If A and B have something, it is common sense where will C get it from, Singhvi said.
By telling me to go after the Times of India, they want to send me on a wild goose chase. I should make every newspaper a party? That is the meaning of confidentiality?Senior Advocate Abhishek Manu Singhvi
During the hearing, the Additional Solicitor General also read out a letter written by a senior Google officer to the chairperson of the commission.
I said I will conduct an inquiry into the leakage. Now they say because I agreed to an inquiry that I have admitted I leaked it. No confidential information that we are to protect has been leaked. It is an over-exaggerated writ petition.Additional Solicitor General N Venkatraman
The bench observed that Google had no business writing to the adjudicating authority. But Google's lawyers clarified that the the letter was written to the CCI's administration side which is also headed by the chairman.
Google has sought an injunction from the court against any further publications based on the report. It also objected to portions of the report marked confidential by the regulator's investigating arm. Around 50% of the report should have been marked confidential but the DG has granted confidential status to only 10% of the report, Singhvi told the court.
The Backstory
The investigation against Google was ordered by the CCI in April 2019. In its prima facie order, the regulator had noted that the Mobile Application Distribution Agreement that Google signed with device manufacturers required them to preinstall the entire suite of Google apps in order to be able to preinstall any proprietary app of Google—Play Store.
The signing of the Android Compatibility Commitment was also an essential condition of the distribution agreement.
Since Play Store is a must-have app, marketability of Android devices may get restricted if these agreements aren't signed. The CCI took a prima facie view that mandatory pre-installation of the entire Google Mobile Services suite under the distribution agreement amounted to imposition of unfair conditions on the device manufacturers.
And so, it directed an investigation by the DG. It's the alleged leak of this investigation report that has Google miffed.
On Sept. 18, the Times of India newspaper reported that the regulator's investigative arm, the director general, had found Google's conduct to be anti-competitive in the mobile operating systems and related markets.
The probe found Google India guilty of stifling competition and innovation to the detriment of the market as well as consumers in order to maintain its grip and dominance in search, music (through YouTube), browser (chrome), app library (Play Store) and other key services, the daily reported.
The news was later also reported by Reuters.
The competition law promises confidentiality to entities under the CCI investigation and gives them the right to claim, negotiate non-disclosure of commercially sensitive information obtained as part of a DG investigation.
Once the DG submits its report to the CCI, parties to an investigation get an opportunity to rebut the findings. Only after that, the regulator gives a final order.
The high court bench of Justice Rekha Palli will take up the case next on Monday.