Ahead of its crucial meeting on Saturday, the Corporate Affairs Ministry (MCA) appointed Panel on Digital Competition Law has acceded to the demands of News Publishers and Startups, roping them as ‘special invitees’ to the deliberations of this committee.

Saturday’s meeting —third since the Committee on Digital Competition Law (CDCL) was constituted on February 6—is crucial as it will be the first occasion when representatives of Big Tech will make presentations on the proposed ex-ante framework and other regulatory steps that are being contemplated by Indian policy makers. Representatives of Big Tech like Google, Meta and Amazon are expected to make presentations/submissions as ‘special invitees’ to the Panel.

Both Digital News Publishers Association (DNPA), a body representing digital news publishers, and Alliance of Digital India Foundation (ADIF), a think tank of digital Startups, are to participate at Saturday’s meeting as ‘special invitees’, sources familiar with developments. 

This is significant as both DNPA and ADIF have been pitching for their inclusion in the MCA-appointed Panel, which currently seems imbalanced with a dominant presence of law firms representatives, many of whom are currently representing Big Tech before NCLAT. Infact, the MCA had recently added two more law firms (representing Google in cases before NCLAT) to the Panel as invitees, drawing the ire of Startups and digital news publishers who were left out.

Levelling of field

Now with the inclusion of DNPA and ADIF as ‘special invitees’, there is some levelling of the field, sources added. When contacted, DNPA Secretary General Sujata Gupta confirmed that DNPA has been invited to participate in the Panel’s deliberations as ‘special invitee’. 

The CDCL has been tasked to study the need for an ex-ante framework in the country, international practices on the subject, and the existing legal framework. It has been mandated to submit its report by May 2023. 

The government as part of vision for Digital India expects the digital economy of the country to touch $1 trillion by 2025-26.

The MCA had on February 6 constituted a 10-member inter-ministerial committee to examine the need for a separate law on competition in digital markets. The panel had been among other things tasked to prepare a draft Digital Competition Act.

The Panel’s terms of reference include a review as to whether existing provisions of the Competition Act 2002 and the rules and regulations framed thereunder are sufficient to deal with the challenges that have emerged from the digital economy and to examine the need for an ex ante regulatory mechanism for digital markets through separate legislation.

The Standing Committee on Finance had in its 53rd report titled ‘Anti- competitive practices by big tech companies’ suggested an ex-ante framework to regulate ‘Systemically Important Digital Intermediaries’ (SIDIs) under a new Digital Competition Act.

New era

This signals a new era of ex-ante frameworks, meant to cover only SIDIs in digital markets, marking a significant exit from the existing sector-agnostic framework which covers all market players, said competition law experts.

It is crucial to analyse the objectives that policymakers seek to achieve by introducing ex-ante regimes, the challenges that may be associated with these frameworks and international guidance on the subject. Further, it is necessary to discuss the implications of these frameworks for the startup economy, facilitation of competition at downstream levels, catalyzing innovation, and ensuring the protection of consumer interests, they said.

Meanwhile, at a round table discussion hosted by public policy think tank The Dialogue on the topic of ‘Future of Competition Policy in Digital Markets’, the significance of achieving a balance between regulating anti-competitive conduct in digital markets and preventing overregulation and harm to innovation and consumer interests was highlighted.

At the Round Table discussions, moderated by OECD Competition Committee Chairman Frederic Jenny, it was emphasised that all potential issues pertaining to the impending Digital Competition Act should be analysed in the context of the effects that the regulations will have on crucial stakeholders such as startups, consumers, and investors through extensive consultation.

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