Resuming submissions in the Android matter, N Venkatraman, Additional Solicitor General of India (ASG), representing CCI on Tuesday, argued before the National Company Law Appellate Tribunal (NCLAT) that Google seriously discourages users to sideload apps outside its walled garden — Play Store — through a series of warnings.
“Sideloading of apps is a multistage process, which every user cannot possibly perform and this [cumbersome process] cannot be an antidote to the competitive abuse indulged by Google,” added ASG.
This remark of ASG is significant as CCI’s contention is that Google is able to perpetuate its monopoly in the Play Store by making the process of sideloading tedious for users. CCI wants sideloading without warnings, and that too with minimal steps, so that it can serve as an effective rival to distribution of Apps to Google’s Play Store.
Sideloading offers mobile devices users a way to access more applications than are available through commercial app stores such as Google Play or the Apple App Store. It is the installation of an application on a mobile device without using the device’s official application distribution method. In a way it helps users bypass Google’s stranglehold on PlayStore. However, the moot point is sideloading allowed by Google comes with warnings and tedious processes.
It maybe recalled that allowing side loading of applications in Android mobile phones is one of the ten non monetary directions issued by the Competition Commission of India(CCI) in its Android ruling of October 20 last year. In response to this direction, Google has claimed that it will result in security risk for Android users.
The recently enacted European Digital Markets Act mandates the gatekeepers (Google and Apple) to allow sideloading of apps as well as app stores.
Meanwhile, Venkatraman further argued that from a market share of 35.4 percent in 2011, the Android OS enjoys a 98.47 percent market share as of 2018 in the Indian market. “The competitors of Google such as Fire OS have become extinct”, said ASG.
He further submitted that Google owns a powerful application called “Play store” which has more than 2.87 Million apps as against insignificant numbers in other Stores. “For an OEM to be successful, he must have Play Store. Google abuses dominance by tying Google Search to the Play Store”, added ASG.
“Google Search was made the default search engine in all search access points. This generates data for Google, which gets monetized. It captures user data and recognises patterns and displays advertisement suitable to each user. 97.69% of Searches as of 2019 is routed through Google Search”.
Through the tying exercise, Google achieves generation of data and increasing traffic to all its applications, ultimately securing more revenue. Either search through Google Search or go ‘Searchless’ is Google’s philosophy, he added.
“When pre-installation was not achieved in Microsoft mobile devices, Google’s usage drastically reduced which goes to show the advantage Google achieves by mandatory pre-installation of its Core Applications”, Venkatraman added.
“Similar to Google Search, if an OEM wants the Play Store, they also have to procure Google Chrome and set it as a default browser and place it on the home screen. In 2018alone, close to 134,619,806 pre-installations of Google Chrome was achieved by Google. Even though competitive browsers such as UC Browser achieved 79% downloads in 2018, the default search engine was mandated to be set as Google Search and their usage nevertheless was insignificant compared to Google Chrome i.e., 23% in 2019 and 18% in 2020”.
Even for a powerful competitor such as Microsoft, if their search engine ‘Bing’ had to be pre-installed on Xiaomi phones, they had to pay a revenue share 90% to effectively compete with Google, he added.
“Similar to Google Search and Chrome, Google also ties Youtube with Playstore, which kills the competition in the market. Youtube has a market share of 99.5 per cent and all other competitors constitute less than half a percent. Google through Youtube has monetized ₹825 crore in 2018 alone, against ₹97.83 crore in 2013”.
In addition to tying, Google also imposes unfair market conditions in the form of Bundling. Even if an OEM wishes to procure one application of the 11 Core Applications, it has to install all the 11 Core Applications. This is Google’s ‘Take it or Leave it’ Policy. The option available to the OEMs is to take all 11 Applications or choose commercial failure, he said.
“By bundling all 11 core applications, it leaves the OEM with no buying power or negotiating advantage. In fact, under the MADA, Google also ensures its control on the manner in which the device is produced by OEMs”.
Venkataraman concluded the submissions for the day by citing precedents on the law of contracts and elucidated on how the agreements imposed by Google are to be pierced and elaborated on how the apparent is not real, as suggested by Google.
