In the hearing that resumed in the Android matter before NCLAT, Google, on Thursday, submitted that it is not possible for the tech giant to separately negotiate Mobile Application Distribution Agreement (MADA) with each and every counterparty mobile OEM, which runs into thousands in numbers. This is even as the CCI had in its October 20 ruling of last year found that MADA is not negotiated with the OEMs.

The tech giant also asserted that if it negotiates separately with the OEMs, it may potentially face charges of discrimination. 

Thursday was the second day of hearing by NCLAT in the Google appeal in the Android case, where the CCI had imposed ₹1,337 crore penalty on the tech giant and issued 10 non-monetary directions that would require it to change its business model. Google is expected to continue its submissions on Friday.

On Thursday, as regards the CCI’s findings of abuse with respect to MADA, Google submitted that standard form contracts are a standard market practice. 

Under MADA, OEMs are required to pre-install the entire Google Mobile Suite (GMS) covering 11 applications of Google as a bundle, and place these apps on the home screen of the device.

GMS is a collection of Google applications and Application Programme Interface (APIs) that help support functionality across devices. GMS includes wide range of key Google apps such as Google Maps, Gmail, YouTube etc.

CCI had found three issues with respect to MADA. First, if an OEM wants any of Google’s apps under GMS, it has to take it with the other 9-10 apps under the suite. Secondly, these apps have to be placed in a particular manner — Play Store icon, Search widget on, a folder containing other GMS apps on the Home Screen. Thirdly, these apps cannot be uninstalled but can be disabled. 

Google in its submissions on Thursday asserted that MADA is non exclusive, voluntary and gives liberty to the OEMs to pick and choose on which devices it wants GMS apps.

Pre-installed apps

On the issue of pre-installed Apps, Google argued that pre installation of Apps is inherently necessary for success of Android operating system. To ensure this success, Google makes sure that a smartphone comes with a “bundle of quality apps” when purchased, added Senior Counsel Arun Kathpalia representing Google before NCLAT.

As a result of this, the phone is functional when it is purchased, it was submitted. Google relied on user survey data to corroborate its submission.

Earlier, on Wednesday, the first day of NCLAT hearing in the Android case, Google alleged ‘confirmation bias’ against the DG (investigating wing of CCI) in mechanically following the European Commission ruling passed against the tech giant in a similar matter, in 2018.

During the hearing before the NCLAT Principal Bench Justice Ashok Bhushan and Alok Srivastava, Google had also argued that CCI ruling did not show ‘effects’ of its alleged anticompetitive practices in the market. It was also contended that CCI ordered investigation on the basis of complaints filed by its Research Associates. 

The Principal Bench had also on Wednesday ruled that interveners will be heard after completion of arguments by Google and CCI in the appeals. 

 The three interveners in the case are Epic Games, MapMyIndia and OS Labs. Amit Sibal appeared on behalf of Epic Games and Rajshekhar Rao represented MapMyIndia. 

On the issue of ‘confirmation bias’, Google contended that the DGmechanically followed European Commission’s order in Android case without any independent examination and investigation according to India based evidence.

In 2018, the European Union had slapped record antitrust fine of € 4 billion on Google for throttling competition and reducing consumer choice through the dominance of its mobile Android operating system. 

Put simply, Confirmation bias happens when a person gives more weight to evidence that confirms their beliefs and undervalues evidence that could disprove it. It is tendency to interpret new evidence as confirmation of one’s existing beliefs. 

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