[By Sakshi Tiwari & Liesha Mishra]
The authors are students of Dr. Ram Manohar Lohiya National Law University, Lucknow.
Introduction
The Competition Commission of India has initiated an investigation into Google over alleged anti-competitive practices in India’s burgeoning gaming sector stemming from complaints over its monopolistic behaviour. The investigation stems from the complaint filed by the real money gaming app WinZO, which alleges that Google is abusing its dominant position by favouring Daily Fantasy Sports (“DFS”) and Rummy applications with a competitive edge while excluding other Real Money Gaming Platforms (“RMG”).
Despite all these applications belonging to the same category of skill based real money games, where there are monetary stakes and a degree of player skill determines outcomes, Google’s policy selectively permits only DFS and Rummy on its Play Store while restricting other RMG applications. This selective classification creates an artificial divide within the same category, granting DFS and Rummy a direct market advantage over other RMG apps that also involve real money transactions and rely on skill rather than luck.
Google’s policy lacks transparency in defining why only DFS and Rummy qualify for inclusion while excluding other skill-based games. This arbitrary distinction distorts fair competition, limits consumer choice, and is now under scrutiny by the Competition Commission of India.
In recent years, India’s online gaming industry has witnessed a surge in users driven by the increasing affordability of smartphones and a growing youth population. In 2023, India had 568 million gamers which accounts for the second largest gamer use base trailing only China. By amending the IT Rules 2021, the government seeks to regulate all online games and provide compliance regulations for online gaming intermediaries offering RMGs. The Supreme Court of India has clarified that when success hinges more on skill than it does on chance in a game, such a game will not be constituted as gambling.
The relevance of this distinction lies in its legal validation that establishes a basis for differentiating skill-based games from gambling. Games like DFS and Rummy are legally recognised as skill based and yet Google’s policy does not reflect the same. By restricting other apps, it creates an inconsistency between legal recognition and market access, raising concerns about fairness and transparency.
Google’s Play Store Policies: A Double-Edged Sword
Google’s policies, which are enforced through its ecosystem of platforms such as Play Store, Google Pay, and Google Ads, have been criticised for restricting market access and favouring specific online games, thereby distorting the competitive landscape. These concerns have been highlighted in Google’s pilot program which granted exclusive Play Store hosting rights to DFS and Rummy applications.
In this scenario, other RMGs, including WinZO users have to opt for sideloading which is a download method directly from the internet, for apps outside of the Google Play Store, reducing exposure and coverage. Given that Google Play Store holds a hegemonic position in downloading and using apps, it deeply impairs the capabilities of other competing apps to gain higher exposure. Thereby, apps like DFS and Rummy push other RMGapplications to the periphery by leveraging their access to a vast user base.
While the reasoning behind introducing this pilot program has been framed as an exploratory measure to foster a secure platform for RMGs, its execution has revealed a glaring imbalance. The selective inclusion of only two games while leaving out the rest from the pilot program raises serious questions about the objectivity of Google’s gatekeeping practices.
Adding to this complexity is Google’s ad policy since 2019, which allows advertisement policy for DFS and Rummy applications, while simultaneously citing regulatory uncertainty to justify excluding other RMGs. This contradiction brings to light a policy that is both supportive and restrictive by giving certain apps the means to grow while restricting others.
Google’s Alleged Abuse Of Dominance
The complaints against Google highlight concerns about its conduct in markets where it already holds a dominant position. The CCI in Google Android case has found Google to be dominant in both the licensable Operating System (OS) market for smart mobile devices in India and the licensable OS market on the device with app stores.
Building on this precedent, WinZO has alleged that Google’s conduct is discriminatory and imposes unfair conditions by creating a two-tier market grating selected apps superior visibility while marginalising the others thereby violating Sections 4(2)(a)(i), 4(2)(b)(i), and 4(2)(c) of the Competition Act, 2002.
Google’s previous penalties for anti-competitive practices in the Android case, further strengthen concerns that it is leveraging its dominance in the gaming industry by selectively favouring certain apps while restricting others without clear justification. This issue raises broader questions about platform neutrality, fair competition, and consumer choice in India’s growing digital economy.
Payment Systems: Restrictive Practices And Monetization Control
To download WinZO, sideloading may work as an alternative to Play Store but this creates additional burden on users. Google warnings during sideloading, ostensibly designed as a security measure, often discourages users by emphasising risks such as malware infections. This situation is further worsened by Google’s approach to transaction-related warnings. While payment warnings by Google Pay have been installed under regulatory compliances, such warnings are absent in the case of DFS or Rummy applications.
There has been a strong dependency created by Google on its ecosystem making it nearly impossible for app developers to compete outside the realm of its platforms. All of this necessitated the investigation by CCI to unveil the potential effects of the combination of practices that Google has undertaken in this case.
How Does Advertising Affect Markets?
In the order released by the CCI, WinZO has claimed that Google’s Pilot Program to allow downloads for only DFS and Rummy could cause market distortions and has also contended the unfairness of Google’s Ad Policy which currently permits only these two applications to run ads. Google’s Play Store policies were in news in the year 2022 after CCI’s imposition of monetary penalty in light of its anti-competitive practices. Thus, while there is enough possibility for Google Play Store to make the headlines again, the ad policy run by Google also requires a deeper analysis.
Advertising has been a crucial part of growth and success for any product and while the pre-technological societies witnessed the usage of print media as the primary source of advertisement, the advent of technology has given digital platforms a whole new impetus for the growth of internet advertisement. In fact, studies have also shown that the growth of a company’s profit is directly proportional to the strength of marketing through online advertisements. More importantly, there is plenty of data available to substantiate Google’s dominant share of the online advertisement market and the enormous consumer base that it has captured. Any unbased restriction to companies would severely affect market forces and produce anti-competitive results as has also been highlighted by the CCI itself.
Additionally, other jurisdictions also have taken note of the mighty influence these tech-giants hold and have imposed fines for exploiting their powers. In France, Google was fined three times in a year for its unfair business practices and as a matter of fact, one of the fines, for a whopping $267 Million, was due to the biases of its advertising services which involved Google algorithm to prefer its own services over those of others. Thus, RMGs will have a considerable stake involved if the Report highlights unfairness in Google’s Ad Policies.
The Enabler Of The Issues
The Investigation is still underway and irrespective of what the Commission will conclude, this case has prompted a vital question: Did Google take advantage of India’s fragmented RMG laws? Most of the claims made by Google highlight a lacuna in the landscape of Indian RMG laws which stems from the fact there is no uniform or specified criteria for the identification of Games of Skills and thus, it requires a case-to-case analysis. Google has used this for its benefit to claim the sanctity of its legal obligations in not hosting RMGs that could land it in legal trouble. While the Commission will act on its findings to curb any anti-competitive practices, the fragmented gaming laws will continue to be a point of contention, especially in the light of the massive growth of online gaming industries. The notification of amendments to the IT Rules, 2021 casts obligations on intermediaries that allow online gaming to follow due diligence. However, the bridge remains cementless with questions of uncertainties still lurking in the horizons of the gaming industry.
Proposed Solutions: Bridging RMG And Competition Laws
The Report of the Investigation is highly awaited. Google has tried justifying its action of not hosting DMS and Rummy applications by citing gaps in the regulatory framework. This highlights the need to have a clear framework for the RMGs especially after Google told CCI that there is a lack of an objective criteria for determining “Games of Skill” which makes it difficult for Google to determine which games pass the criteria of qualifying as a game of skill. While the commission, in its examination of the warning displayed for sideloading, upheld it since it is a requirement by regulatory bodies, the same cannot be said for the warnings displayed during payments. Google’s justification is not adequate because the warning should be uniformly applied in the first place. . Another issue is an extension till an indefinite period; the same must be substantiated with a reason that explains the clear discrimination faced by the other applications.
Google’s dominant position warrants a clear ad policy that could equally benefit all the players involved without exercising any preferential treatment since a fair market necessitates the presence of equal opportunities. The case also highlights that regulatory bodies like the CCI need to level up their oversight mechanisms by bringing in changes. This can be done by periodic audits in areas of app visibility, control over monetisation, and regulation of payment warnings which could help address technical apprehensions of users regarding the associated risks and instill trust in them.
Conclusion
The tendencies of Tech Giants to foster detrimental policies and engage in anti-competitive practices is not new, and there have been plenty of instances where giants like Meta, Google, and Apple have been penalised across various jurisdictions. Google app store downloads remain at an all-time high and it would not be sustainable to allow Google to continue the Pilot Program indefinitely while denying entrance to other market players. The All India Gaming Federation had also flagged this issue and highlighted the pressing need to implement the Digital Competition Bill. WinZO has presented numerous claims wherein it is evidently clear that Google’s listing of Rummy and DFS on Google Play Store is more than just a part of the Pilot Program.
The indefinite period of the Program, the blatant discrimination in Ad Policies, and the unfair display payment warnings for RMGswhile using Google Pay remain unjustified and this directly affectsthe interest of the other stakeholders . Thus, the Report of the CCI’s Investigation will play a crucial role in not just examining Google’s alleged practices but might also act as an impetus in determining the fate of RMGs in India.