Google moves Karnataka High Court

Google moves Karnataka High Court

The technology giant has challenged the Competition Commission of India's order on the Play Store payment policy

Google India Private Limited has approached the Karnataka High Court seeking to quash the recent order passed by the Competition Commission of India (CCI).

The CCI had rejected Google's request for access to the identity of app developers/start-ups allegedly suffering harm on account of Google Play Store's 2020 payments policy.

The plea was filed by Poovayya & Co. through partner Sanjanthi Sajan and advocates Dharmendra Chatur and Manu Kulkarni.

Sajan stated that in 2020, an anonymous party filed a complaint against the petitioners in relation to their policies surrounding Google Play. Subsequently, CCI directed the director-general to initiate an investigation against Google. This was to determine whether Google required developers (distributing their apps through the Play Store) to use Google Play's billing system and to pay 15-30 percent on the sale of digital goods as a service fee.

Meanwhile, a respondent, Alliance of Digital India Foundation (ADIF), filed an application under the Competition Act, asking the Commission to stay the petitioner's Google Play billing clarifications.

In its response, Google said, "The application was filed approximately one year after the Google Play billing clarifications were announced. It was, therefore, clear that ADIF itself had disproved any notion of urgency in approaching the Commission for interim relief measures."

Even as the Commission's investigation was ongoing, ADIF filed additional information informing about its non-confidential version. The company requested that the Commission establish a confidentiality ring and share the confidential version of the ADIF application, explaining that this would allow Google to understand the claims against it.

The Commission set up a confidentiality ring, allowing six members to be part of the petitioners' confidentiality ring. It also directed ADIF to submit a revised version of the application. However, the Commission, on its own accord, instructed ADIF to redact the names and identities of app developers/start-ups who had provided evidence for the application.

The petitioners again asked the Commission to disclose the identity of the app developers/start-ups who provided evidence and information in the application.

Thereafter, it was announced that the deadline for impacted Indian developers to comply with the Google Play billing clarifications was extended until 31 October 2022. The same was informed to the Commission.

However, in December, ADIF filed a rejoinder in response to the 'Limited Response' filed by the company, asking the Commission inter alia to rule on the application.

Following this, the company passed the impugned order refusing to disclose the app developers/start-ups' identities, stating it was satisfied with the confidential version of the application. The Commission also dismissed as "thoroughly misconceived" the petitioners' argument that deferring the deadline for the Google Play billing clarifications rendered the ADIF application infructuous. The Commission directed the company to file its response to the application.

The plea said that the impugned order violated the principles of natural justice. It constrained the petitioners to defend the ADIF application, which was predicated on an assertion of irreparable harm. It, simultaneously, denied the petitioners the right to know the identity of the parties that they had allegedly harmed.

It further stated, "Such restraint was premised on mere speculation that the petitioners would retaliate against the complainants, a theory the Commission adopted without any reasoned order or hearing."

"The Commission failed to appreciate that withholding information relating to the identity of the relevant app developers/start-ups denies the petitioners their right to defend themselves effectively, including their ability to verify the particulars of the harm alleged," it added.

The impugned order disabled Google's ability to test the bona fides of ADIF's claim to represent the entities that allegedly required interim relief. It denied Google the right to determine whether the complainant entities were in fact among the very small percentage of Indian app developers/start-ups that may be affected (which Google estimated to be less than 1 percent).

The plea prayed for directions to the Commission to protect the petitioners' constitutional, statutory and due process rights and to set aside the impugned order. The petitioners sought to stay further proceedings in relation to ADIF's application before the Commission and also grant a stay of the operation of the impugned order.