Drawing The Lines In The Digital Sand - Ex-Ante Rules For A Borderless World

Author: LawSphereX

Category: Technology, Cyber & Privacy

Published: 2026-08-23T19:34:42.472Z

Updated: 2026-08-30T07:04:57.175Z

DRAWING THE LINES IN THE DIGITAL SAND: EX-ANTE

RULES FOR A BORDERLESS WORLD

Shirin Suri, National Law Institute University, Bhopal

ABSTRACT

The term ex-ante, signifying actions or evaluations undertaken prior to the occurrence of a specific event, has recently gained prominence in the realm of digital competition regulation. With the rapidly evolving dynamics of the digital marketplace, where tech entities can ascend to dominant positions within remarkably short timeframes, conventional ex-post enforcement mechanisms have often proven inadequate. These swift market shifts have enabled several digital conglomerates to elude the oversight of traditional competition law enforcement. In response, a wave of regulatory innovation has swept across prominent jurisdictions. The European Union has been at the forefront of this movement with the enactment of the Digital Markets Act (DMA), a legislative framework meticulously crafted to govern and curtail the anti-competitive conduct of Big Tech enterprises.

Mirroring this approach, nations such as the United Kingdom, Germany, Australia, and Japan are concurrently advancing their own ex-ante regulatory frameworks tailored to address the nuances of their respective digital economies. This paper undertakes a comprehensive analysis of these emerging legislative paradigms within the aforementioned mature competition law jurisdictions, evaluating both their structural underpinnings and anticipated implications. Special attention has been accorded to the evolving legislative discourse in jurisdictions where the ex-ante regime is still in its developmental stages, including an in-depth examination of key committee reports and recent policy deliberations. Within the Indian context, the study scrutinises the sufficiency of the extant competition law apparatus in curbing the monopolistic tendencies of digital giants.

Furthermore, it closely examines the jurisprudential trajectory of the Competition Commission of India (CCI), specifically through landmark cases involving allegations against e-commerce platforms and smartphone manufacturers. A discernible pattern has emerged—one wherein the CCI appears reticent to impose sanctions or pursue in-depth inquiries against dominant e-commerce entities, while adopting a markedly stricter stance vis-à-vis smartphone manufacturing firms.

I.

INTRODUCTION

Technology plays an integral role in our daily lives. We have cultivated a symbiotic relationship with artificial intelligence facilities like ChatGpt, Alexa, Siri, Google Bard among others. From planning a trip to booking a stay, algorithms are predicting customer demand and structuring the prices accordingly thereby decreasing human involvement in the whole process. Furthermore, the Indian government is actively promoting digital economy with the aim of establishing a web of connectivity among every citizen through a network of data.1 As a result, the share of the Indian digital economy in the country’s GDP has surged from 4.5% in 2014 to 11% in 2023 and the Indian government is estimating an increase up to 20% of the GDP in

2026.2 This growth has been seen due to the active involvement of “Big Tech” companies like

Microsoft, Apple, Amazon, Meta etc. in the Indian Digital Economy. 3 These companies assume the dual role of an intermediary as well as a service provider and prima-facie appear to be dominant in their respective domains like social media, e-commerce etc. However, growth in the Indian digital economy comes with its own trials such as an increased risk market distortion due to widespread algorithms engaged in interdependent pricing,4 monopolistic practices and privacy violations. Control in the hands of Big Tech companies also raises concerns regarding the possible adverse economic outcomes arising from the concentrated structure of the digital economy. 5 Further, these Big Tech companies create an ecosystem where it is tough for users to change to substitutes, which often leads to no innovation and less competition.

6 This concern can be exemplified by the legal action taken by both the US Department of Justice as well as the Competition Commission of India (‘CCI’) against Google for misusing its dominant position in the search engine and advertisement 1Rajatkumar Dani, 'Digital India is a global success story' (Times of India, 24 September 2022) accessed 15 January 2025. 2 The Hindu, 'India’s digital economy will contribute 20% to GDP in 2026: Rajeev Chandrasekhar' (The Hindu, 17 August 2023) accessed 15 January 2025. 3 Madhumitha Sridharan, 'Regulating the Digital Sphere: India’s Approach to Ex Ante Measures and Competition Law' (Surana and Surana, 20 October 2023) accessed 15 January 2025. 4 Inge Graef, 'Algorithmic price fixing under EU competition law: how to crack robot cartels? ' (CITIP Blog, 10 May 2016) accessed 15 January 2025.

5 OECD competition committee, 'Ex ante regulation of digital markets' (OECD, 2021) accessed 15 January 2025.

6 Ibid.

market, harming both customers and the competition.7 These problems have ignited discussions regarding the need for an effective law for regulating fair and competitive digital market place. Last year the Indian Parliamentary Standing Committee of Finance (‘Committee’) too scrutinized the anti- competitive practices by Big Techs.8 II.

THE NEED FOR AN EX- ANTE LEGISLATION

One of the most complex and evolving challenges that competition regulators face globally is the regulation of digital markets. Unlike traditional markets, digital markets exhibit a distinctive structure, characterized by high network effects, multi-sided platforms, data-driven business models, and rapid technological advancement. These attributes create an entirely new paradigm for competition analysis. Traditional competition laws, which have largely been developed and interpreted within the context of physical markets and tangible goods, often fall short when applied to the intricacies of the digital economy. As a result, regulatory authorities around the world are facing increasing difficulty in effectively applying competition law to this new technological landscape. One of the core issues arises from the data-centric nature of digital platforms.

Data is the new currency in the digital ecosystem, and the control over vast amounts of user data gives large tech platforms a competitive advantage that is difficult to challenge. This dominance allows them to not only entrench their market position but also potentially stifle competition through practices such as self-preferencing, tying and bundling services, or creating walled gardens that limit interoperability. Traditional ex-post enforcement mechanisms are often reactive and slow, allowing significant anti-competitive harm to occur before regulators can intervene. This time lag between the identification of anti-competitive conduct and the implementation of remedial measures severely weakens the efficacy of competition law in the digital space. In this context, an ex-ante legislation can serve as a proactive mechanism to address these challenges.

Such legislation identifies potential issues before they crystallize and imposes obligations designed to prevent anti-competitive conduct from emerging in the first place. Through premeditated regulatory intervention, ex-ante rules exert influence on the behaviour 7 Brent Kendall, 'Justice Department Hits Google With Antitrust Lawsuit' (The Wall Street Journal, 20 October 2020) accessed 15 January 2025. 8 Standing Committee of Finance, Anti- Competitive Practices by The Big Techs Companies (LS 2020-23). of stakeholders and can establish a framework of accountability that deters misconduct. It essentially moves the regulatory approach from one of reaction to one of prevention, which is crucial in fast-moving digital markets where market power can be accumulated and abused quickly. Moreover, ex-ante legislation can play a vital role in ensuring fairness and promoting equal competition.

It can provide a robust legal basis for tackling entrenched dominance and discriminatory practices by large platforms, particularly those that act as gatekeepers. These platforms often set the rules of the game for other market participants, including smaller firms and consumers. Without a strong regulatory framework, there is a significant risk of abuse of dominance and the marginalization of innovative startups. Ex-ante regulation helps level the playing field by introducing obligations that ensure fair access, non-discrimination, and platform neutrality. Additionally, such legislation promotes contestability—a condition in which market participants can enter and compete on merit. In highly concentrated digital markets, where entry barriers are high and switching costs are significant, enhancing contestability is essential for ensuring long-term market health.

By imposing conduct obligations, such as those relating to data portability, interoperability, and transparency in platform operations, ex-ante rules reduce entry barriers and facilitate effective competition. Beyond fairness and contestability, innovation and transparency are other critical areas where ex-ante regulation proves beneficial. Innovation can be stifled in an environment where a few dominant players control key digital infrastructure and exert monopolistic control over app stores, advertising markets, or search algorithms. Ex-ante measures can prevent dominant platforms from engaging in exclusionary conduct that blocks or undermines competitors' innovations.

Furthermore, transparency measures embedded in ex-ante frameworks—such as disclosure requirements related to algorithmic decision-making, data usage, and content moderation policies—can help reduce the information asymmetry between platforms and users, regulators, and third parties. This in turn empowers users to make informed choices and regulators to take evidence-based decisions. Recognizing the need for proactive digital regulation, the European Union (‘EU’) took a pioneering step by enacting the Digital Market Act, 2022 (‘DMA’). The DMA introduces a structured set of rights and obligations specifically for large online platforms identified as gatekeepers. These are platforms with a significant impact on the internal market, which serve as an important gateway for business users to reach consumers and enjoy an entrenched and durable position.

The DMA is aimed at curbing the abuse of such dominant positions by imposing a series of do’s and don’ts to preempt anti-competitive conduct. It regulates service providers across a broad spectrum, including social networking sites, search engines, operating systems, and online marketplaces. Importantly, it serves as a model for how ex-ante legislation can effectively govern the unique dynamics of the digital market. Its impact is not limited to Europe but is shaping the global discourse on digital regulation. In India, the need for a dedicated ex-ante regulatory framework is increasingly being felt. The Competition Commission of India (‘CCI’) has taken significant steps by initiating investigations into the conduct of several Big Tech companies and imposing fines for violations of the Competition Act, 2002 (‘the Act’).

These actions have highlighted the challenges faced in applying traditional competition law principles to rapidly evolving digital business models. However, these steps, while commendable, are largely reactive in nature and occur after anti-competitive harm has already materialized. Given the pace and complexity of the digital economy, waiting for violations to occur before acting may not be sufficient. India's digital economy is expanding rapidly, with increasing digital penetration, growth in ecommerce, fintech, app-based services, and digital advertising. This growth trajectory demands a regulatory framework that can keep pace with innovation while safeguarding the interests of consumers and ensuring a competitive market environment.

An ex-ante law tailored to India’s digital landscape could serve as a powerful tool to regulate gatekeepers, protect startups from unfair practices, prevent monopolistic trends, and promote data sovereignty. Furthermore, adopting an ex-ante approach could align India with global best practices, promote investor confidence, and foster a predictable and innovation-friendly regulatory environment. It would also help Indian regulators engage more effectively in international conversations on digital governance and harmonization of digital market regulation. III.

CCI AND THE DIGITAL MARKET

The CCI on many occasions has assessed the role of Big Tech and pronounced orders governing digital markets in India. The cases can be divided into two categories, firstly the cases against digital e-commerce platforms like Flipkart, Amazon and secondly, against smart phone related service providers like Google. The subsequent paragraphs delve into the types of allegations against Big Techs and the position taken by the CCI. A. Cases Against E-commerce Platforms In the case of Mohit Manglani vs M/s Flipkart India Private Limited,9 Mohit Manglani, the informant filed a case against Flipkart, Jasper Infotech, Snapdeal, Amazon, and other ecommerce entities under section 19(1)(a) of the Act. 10 The allegations against the opposite parties were that the e-commerce entities and sellers of the goods and services entered into an exclusive agreement which violated section 3 of the Act.

11 It was also alleged that goods were hoarded to create an artificial scarcity with an intent to create a hype for the product. These ecommerce entities violated section 412 as they abused their dominant position. The informant substantiated his claim by referring to an agreement between Flipkart and Rupa Publications, whereby Flipkart was the exclusive seller of the Chetan Bhagat’s book Half Girlfriend. The informant further proposed that such an arrangement meant that Flipkart will have the sole monopoly on the sales of the book. Hence, the Informant alleged that such an exclusive agreement will have an ‘Appreciable Adverse Effect on Competition’ (‘AAEC’). 13 Whereas, the opposite parties denied these allegations by contending that offline and online should not be considered as separate relevant markets since the online sales were only 1% of the total sale in India.

Further, they contended that the exclusive agreement was only for online sales and thus it did not have an AAEC. The CCI in this case concluded that the opposite parties are not dominant and such vertical exclusive agreements do not amount to AAEC. In 2018, in the case of All India Online Vendors Association vs Flipkart India Private Limited,14 another case was filed against Flipkart. The informant alleged that Flipkart India sold goods to WS Retail Services Private Limited (Owned by Flipkart Internet) at a reduced price which were then sold by Flipkart Internet on its online platform Flipkart. It was contented that Flipkart gave preferential treatment to certain sellers. Further these practices acted as a

9 2015 SCC OnLine CCI 66.

10 See note 5, above.

11 Section 19(1)(a) of the Competition Act, 2002 (India).

12 Section 4 of the Competition Act, 2002 (India).

13 Section 3 of the Competition Act, 2002 (India).

14 2018 SCC OnLine CCI 97.

barrier in the relevant market for the third parties. Meanwhile, the opposite parties in this case contented that Flipkart operated in two different markets with different end-consumers. The CCI in this case defined the relevant market as ‘services provided by online marketplace platforms for selling goods in India’. The CCI concluded that Flipkart with only a 40% market share, was not dominant. Hence, it was not found in violation of section 4. 15 Moreover, CCI noted that e-commerce market in India is at a growing stage and there should be no intervention as it will stop the innovation. 16 Similar to the aforementioned case, in the matter of Delhi Vyapar Mahasangh vs Flipkart & Amazon,17 Delhi Vyapar Magasangh filed a case against Flipkart and Amazon. The complaint was similar to the All-India Online Vendors Association18and Mohit Manglani19 case.

The allegation made by Vyapar Mahasangh was that exclusive vertical agreements causes problems such as deep discounting, preferential listing of preferred seller, identification like ‘Assured Seller’. The CCI in this case held that the Act has no provision which provides for collective or joint dominance. Hence, CCI did not investigate further for any anti-competitive behavior by Amazon or Flipkart. Moreover, it held that preferred sellers works as an extension of the ecommerce market. 20 In Lifestyle Equities & Co. vs Amazon Seller Services Private Limited,21 the informant namely Lifestyle Equities owns Beverly Hills Polo Club and filed a case against Amazon contending preferential listing, deep discounting, counterfeits of product, restraint of trade and entry barrier. The informant alleged that Amazon has abused its dominance position in the ‘online fashion retail in India’ market.

However, Lifestyle sold no products on Amazon but it contented that the counterfeit products of Beverly Hills Polo Club are sold on Amazon at low prices which has resulted in diversion of customers. The informant further alleged that the counterfeit products are sold by Cloudtail and a preferential treatment is given by Amazon to Cloudtail. The CCI in this case delineated the market as ‘market for services provided by online platforms for selling fashion merchandise in India’. The CCI held that such products are sold both at

15 Section 4 of the Competition Act, 2002 (India).

16 See note 20, above.

17 2020 SCC OnLine CCI 3.

18 See note 20, above.

19 See note 16, above.

20 See note 23, above.

21 2020 SCC OnLine CCI 33.

vertical (Myntra) and horizontal platforms (Amazon). The CCI on basis of market research held that Amazon was not a dominant player in the delineated market. Moreover, CCI further stated that the matter of counterfeiting is not under the scope of CCI’ power since Amazon was not in a dominant position. In 2021, a Suo- Motu investigation was also investigation was initiated by CCI in response to the Reuters report. 22 The CCI initiated the investigation to know whether Amazon is involved in creation of knockoffs and manipulation of search results to promote its own products in India. Amazon was asked to submit the relevant documents and provide a response.

Amazon Seller Service in response to the investigation contended that Amazon cannot be held liable for knockoffs because Amazon does not manufacture its private label products as it is manufactured by third parties and further no preferential treatment is given to these third parties. Based on Amazon’s response CCI decided not to investigate further in the case. 23 Hence, through the cases enumerated above it can be implied that the e-commerce market has attracted a vast number of cases because of the consumers24 and the retailers. 25 However, CCI has chosen not intervene a lot in the e-commerce market as it does not want to hamper innovation in the market. B. Cases Against Smart Phones Service Providers E-commerce platforms were able to circumvent the penalties CCI could have imposed however Big Tech companies like Google were not able to elude it.

Apple was also investigated by CCI but no penalty was levied on them. In the case of Umar Javeed & Others vs Google LLC & Google India Private Limited,26 the informant Umar Javeed and 3 other people filed a case against Google for violating section 4 of the Act as it abused its dominance in the market for mobile operating system. The informant alleged that Google imposed a condition on the manufacturers of the smartphones and tablets 22 Aditya Kalra & Steve Stecklow, 'Special Report: Amazon copied products and rigged search results to promote its own brands, documents show' (Reuters, 13 October 2021) accessed 15 January 2024. 23 Unknown, 'CCI decides not to pursue case related to Amazon Seller Services' (LiveMint, 11 March 2022) accessed 15 January 2024.

24 See note 16, above.

25 See note 23, above..

26 2022 SCC OnLine CCI 61.

that to get Google Mobile Services (‘GMS’) made, sold, exported in India, they had to preinstall only Google apps or services. This condition of Google was creating a barrier for competitors to develop or get into the market. Further the informant alleged that Google integrated a lot of its application like Google Chrome, YouTube, and Google Maps, along with other application. This practice created challenges for individuals seeking smart mobile devices that could utilize alternative, potentially superior versions of the Android operating system. Moreover, Google prohibited smartphone companies from producing and marketing “Android Forks”, which are distinct versions of Android designed by other manufacturers having the capability to modify and develop their own customized forked operating systems.

This restriction was also a barrier for individuals seeking access to innovative smartphones that could run on improved versions of the Android operating system. Google in response contended that it has been facing a tough competition from Apple and it also contended that all of its services are free of cost and hence there is no sale of services. The CCI in this case held Google liable for violation of section 427 of the Act. The CCI held that google abused its dominant position by forcing people to use Google’s services through GMS. CCI further held that the condition to pre-install Google applications on the smartphones placed by Google was detrimental to both the users and smartphone companies. As this condition implied that companies must pay for apps they may not need, while also restricting the entry of alternative apps.

Moreover, Google prohibiting smartphone companies from developing app suggested its desire to be dominant in the market. CCI imposed a penalty of Rs. 1,337. 76 Crores. 28 In XYZ (Confidential) vs Google LLC,29 three cases (XYZ (Confidential) vs Google LLC;30 Match Group, Inc. vs Google LLC;31 Alliance of Digital India Foundation vs Google LLC32) were joined together in which CCI dealt with the anticompetitive behaviour of Google with regards to Google Playstore. In this case the app developers who sold their applications on Google Playstore were restrained. The app developers were asked to sign to Play store

27 Section 4 of the Competition Act, 2002 (India).

28 Sumit Kumar singh, 'Competition Commission slaps Rs 1,33776 crore fine on Google for 'unfair business practices'' (India Today, 20 October 2022) accessed 15 January 2025.

29 Case No. 07 of 2020 (Competition Commission of India).

30 Ibid.

31 Case No. 14 of 2021 (Competition Commission of India).

32 Case No. 35 of 2021 (Competition Commission of India).

condition. One of the conditions of the Google Playstore was that the developers were only to use Google Play’s Billing system (‘GPBS’). Moreover, this was applied to both the first purchase and in app purchases. These in app purchases are microtransactions which is an important revenue for the application developers. However, Google was taking a share from these microtransactions too. The GPBS has one more condition that it does not allow the App developers to share the other payment methods other than GPBS to the app users. If any App developers does not follow these conditions the app used to be delisted. Further the informant alleged that Google integrated its United Payments Interface (‘UPI’) app, Google pay with Google Play app store but did not integrate other UPI apps like Phonepay etc.

In this instance, the CCI determined that Google engaged in an abuse of its dominant position by imposing compulsory usage of GPBS, leading to a restraint of trade. It also creates an entry barrier for payment aggregators. Further CCI held that Distinct regulations governing the integration of Google Pay and other UPI payment applications into GBPS are considered anticompetitive. CCI also imposed a penalty of INR 936. 44 crores. The CCI also ordered Google not to discriminate with other payment aggregators and also remove requirement to use GBPS. Apple also faced an investigation by CCI in the case of Together We Fight Society vs Apple Inc.

& Apple Distribution International Limited,33 the allegation raised in this case were that Apple imposed unreasonable restriction on the app developers and prevented the developers from accessing users of its accessing users of its mobile devices unless they utilize the 'App Store' controlled by Apple. Further, Apple also mandated developers to use the payment option provided by Apple with regards to in app purchase, which resulted in a 30% in- app fees. However, such conditions were not imposed on the developer’s making application for Macs, the developers were allowed to make their product available in open market with different payment options. Apple in its response contended that it only has a market share of 0. 5% and hence not dominant in India. 34 The CCI concluded that Apple is dominating in its relevant market that is ‘app stores for iOS in India’.

CCI in its prima facie investigation agreed with the informant and noted that such mandatory requirements for app purchase and in-app purchase restricts the choices available.

33 2021 SCC OnLine CCI 62.

34 Anirudh Burman, ‘Regulating India’s Digital Platforms

Why Ex-ante Rules are Necessary’ (2023) 58(3) Economic and Political Weekly 17.

Further it noted that the 30% commission will affect the competitiveness in the market. CCI noted that it is important to investigate in this matter and formed a prima facie view that Apple violated section Section 4 of the Act.35 The investigation is still ongoing. 36 Hence, through the case above it can be implied that CCI decision into abuse of dominance in the mobile ecosystem is similar to other jurisdictions.37 The stance of the CCI regarding the abuse of dominance seems to align more closely with the position of the European Commission than with that of the United States. Similar to the European Commission, the CCI has identified instances of abuse of dominance and imposed penalties as a response.38 IV.

ANALYSIS

OF THE PROPOSED EX- ANTE REGULATION In 2022, a landmark step was taken by the Indian Parliament when the Parliamentary Standing Committee on Finance presented its report titled ‘Anti-competitive practices by big tech companies’ to the Lok Sabha. 39 This report marked a turning point in India’s approach to regulating digital markets. The Committee’s observations stemmed from the increasing number of global and domestic instances where Big Tech firms were found to be engaging in exclusionary and anti-competitive behaviour that conventional ex-post competition mechanisms were unable to swiftly or effectively address.

40 As evident from numerous highprofile cases already addressed by the Competition Commission of India —including those involving Google, Amazon, and Facebook—there is an observable and growing need to develop a more anticipatory and preventive framework to deal with such conduct. 41 Taking note of the global shift towards proactive digital regulation, and recognising the pace at which digital markets are tipping in favour of a few dominant players, the Standing Committee proposed the introduction of a dedicated legislation, the Digital Competition Act (‘DCA’). This proposed law seeks to tailor competition regulation specifically to the digital

35 Section 4 of the Competition Act, 2002 (India).

36 Avirup Bose, ‘The Challenges of Regulating Big Tech in India

Lessons from Global Developments’ (2022) 14(2) Indian Journal of Law and Technology 145.

37 Epic Games Inc. v. Apple, Inc., Cases No. 21-16506 & No. 21-16695 (2023).

38Gaurav Somenath Ghosh & Subhashish Gupta, ‘Ex-ante Regulation in Digital Markets in India: Some Practical Considerations’ (IIM Bangalore Research Paper No. 683, 2023). 39 Arghya Sengupta and Smriti Parsheera, ‘Governing the Platform Economy: Problems, Principles, and the Indian Regulatory Response’ (2021) 7(1) Journal of Antitrust Enforcement 42. 40 Martin Peitz and Heike Schweitzer, ‘A Dynamic Perspective on Ex-Ante Regulation of Online Platforms’ (2021) 13(3) Journal of European Competition Law & Practice 143. 41 Neha Mishra, ‘Platform Power and the Global Governance of Digital Trade: A Look at India and Beyond’ (2022) 45(1) World Trade Review 89. ecosystem, reflecting the reality that traditional market dynamics—on which the Competition Act, 2002 (‘the Act’) is based—do not always align with the behavior of platform-centric, datadriven digital markets.

42 Following the recommendations of this report, the Ministry of Corporate Affairs constituted a high-level Committee on Digital Competition Law (‘CDCL’) to comprehensively review the current legislative framework and assess whether India requires a new, standalone ex-ante competition law tailored for the digital economy. 43 The CDCL’s mandate includes examining whether existing provisions under the Act are sufficient, and if not, whether a parallel or supplementary regime is needed to address the complexities of digital markets. Although the CDCL is yet to submit its report, which is expected sometime in 2024, its formation in itself signals a clear institutional recognition of the limitations of ex-post enforcement in today’s digital landscape. The Parliamentary Standing Committee’s report noted several fundamental differences between traditional and digital markets.

Unlike traditional sectors where market power is typically accrued gradually, digital markets are prone to rapid “tipping,” where a dominant position can be established in a short time due to network effects, data advantages, and consumer lock-ins. 44 For example, once a critical mass of users chooses a particular platform, its value increases exponentially, making it difficult for rivals to compete or for consumers to switch. These unique characteristics necessitate an ex-ante approach that can intervene before harm to competition becomes irreversible. 45 A major innovation proposed in the report is the designation of certain entities as ‘Systemically Important Digital Intermediaries’. These are digital platforms that, due to their size, scale, and scope, exert a “significant influence over competition in the digital ecosystem.

” SIDIs, once identified, would be subject to a predefined set of obligations and restrictions—including transparency requirements, data-sharing duties, platform neutrality rules, and prohibitions on 42 Nidhi Singh and Sidharth Chauhan, ‘Big Tech and Competition Law: Comparative Analysis of Regulatory Approaches’ (2023) 4(1) NALSAR Student Law Review 110. 43 Ariel Ezrachi and Maurice E Stucke, ‘The Rise of Behavioural Discrimination’ (2016) 37(3) European Competition Law Review 137. 44 Parliamentary Standing Committee on Finance, Anti-competitive practices by Big Tech companies (53rd Report,

2022) https://loksabhadocs.nic.in/lsscommittee/Finance/17_Finance_53.pdf accessed 16 April 2025.

45 Centre for Internet and Society (India), Market Failures and Regulatory Approaches in Digital Platforms (2023) https://cis-india. org/internet-governance/blog/market-failures-and-regulatory-approaches-in-digital-platforms accessed 16 April 2025. self-preferencing. The objective is not to penalize success, but to prevent the abuse of entrenched dominance and ensure that market access remains fair and contestable for smaller players. 46 The Committee also recommended the establishment of Digital Market Units within the CCI. These specialized units would function as sector-specific regulators, with technical and economic expertise to monitor SIDIs on an ongoing basis. 47 The DMUs would not only oversee compliance but would also proactively engage in market intelligence, horizon scanning, and behavioral assessments, allowing for early intervention.

Importantly, they would monitor both currently designated SIDIs and emerging digital intermediaries whose market conduct could potentially distort competition in the near future. This represents a shift from a complaint-based enforcement system to one based on continuous oversight and real-time responsiveness. 48 Another striking aspect of the report is the detailed enumeration of ten core anti-competitive practices that are prevalent in the digital ecosystem and which, according to the Committee, warrant targeted regulatory attention.

These include: • Self-preferencing in search results or app store rankings, • Exclusive dealing arrangements, • Unfair data monetisation, • Platform neutrality violations, • Non-transparent algorithmic decision-making, • Bundling of services to stifle competition, • Discriminatory access to user data, 46 Rishi Raj, ‘Big Tech Market Dominance: Panel Bats for New Law’ The Financial Express (18 December 2022) https://www. financialexpress. com/business/big-tech-market-dominance-panel-bats-for-new-law-2914871 accessed 16 April 2025. 47 Ministry of Corporate Affairs, Government of India, Press Release: Constitution of Committee on Digital Competition Law (6 February 2023) https://pib. gov. in/PressReleasePage. aspx? PRID=1896571 accessed 16 April 2025.

Abuse of superior bargaining power over small businesses, • Restrictions on data portability and interoperability, • And ecosystem lock-ins that deter multi-homing. By explicitly naming and categorising these practices, the Committee seeks to develop a codified ‘prohibited conduct list’ that can form the backbone of the new DCA, similar to the Digital Markets Act (DMA), 2022 in the European Union (‘EU’). 49 The CDCL’s mandate expands beyond simply reviewing past cases or examining existing statutes. It is tasked with evaluating whether a dual regulatory approach—i. e. , retaining expost enforcement under the Act while introducing ex-ante obligations for digital platforms—is viable and necessary in India. A unique aspect of the Indian regulatory context is the intersection of digital dominance with issues of privacy, data localization, consumer protection, and fintech regulation.

Therefore, the CDCL is also expected to explore how a future DCA could harmonize with sectoral laws like the Information Technology Act, 2000, the upcoming Digital Personal Data Protection Act, 2023, and the regulatory frameworks governing ecommerce and fintech. From a broader policy standpoint, the proposed ex-ante regulation would also help India develop a “competitive digital public infrastructure”—a space where startups and MSMEs can innovate without fear of exclusion, retaliation, or forced dependency on dominant platforms. It can also send a clear signal to global investors and tech companies that while India welcomes innovation and capital, it is committed to ensuring that growth is not achieved at the cost of competitive fairness or consumer choice.

In essence, India’s move towards ex-ante digital regulation is not only a reaction to global trends but also a necessary adaptation to domestic realities. A well-crafted DCA— complemented by a vigilant and well-equipped DMU under the CCI—has the potential to transform India into a regulatory innovator in the Global South. By proactively identifying risks, establishing platform accountability, and promoting contestability, such a framework can

49 Arun Sukumar, ‘India Needs an Ex-Ante Competition Law to Curb Digital Monopolies’ The Hindu

BusinessLine (8 March 2023) https://www.thehindubusinessline.com/opinion/india-needs-an-ex-antecompetition-law-to-curb-digital-monopolies/article66590971.ece accessed 16 April 2025. balance the twin imperatives of economic innovation and market fairness.50 V.

ANALYSIS

OF INTERNATIONAL JURISDICTIONS It is widely noted that the enforcement of competition laws falls short in promptly and effectively addressing emerging issues within digital marketplaces. Due to the rapid evolution of market dynamics, cases often endure prolonged periods before reaching a conclusive resolution, often resulting in less-than-ideal outcomes. Critics assert that the existing enforcement mechanisms of competition laws are inadequate in comprehensively tackling the economic structures of digital marketplaces. Additionally, there has been an expression of dissatisfaction with how competition laws function within these realms.

Many competition authorities face difficulties in addressing competition concerns in digital markets, particularly when relying solely on a narrowly defined consumer welfare criterion and employing traditional price-based competition techniques such as establishing relevant markets. 51 Due to this, practitioners and policymakers are in agreement that digital markets need to be regulated in some way, either to supplement competition law with ex-ante regulations or to provide competition agencies additional instruments in addition to the competition legislation already in place. 52 Some opine that the competition tools already in use be modified to improve their ability to evaluate certain attributes of multisided platforms, such as market shares, concentration ratios, or price-cost comparisons.

53 Meanwhile, others have suggested that a more effective approach to addressing structural barriers to entry and conglomerate effects would be to directly regulate the biggest digital enterprises ex-ante. 54 Numerous countries, including Australia, the EU, France, Germany, Italy, Japan, the United Kingdom, and the United States, have passed or proposed ex-ante legislation that are particularly targeted at digital platforms or certain components of digital markets. New regulations for digital marketplaces have also been passed by a number of other countries, 50 OECD, Digital Economy Outlook 2020 (OECD Publishing, 2020) https://www. oecd. org/digital/digitaleconomy-outlook-2020-bb167041-en. htm accessed 16 April 2025.

51 Oecd, 'Executive Summary of the Hearing on Ex ante regulation and competition in digital markets' (Directorate For Financial And Enterprise Affairs Competition Committee, 2021) accessed 15 January 2025.

52 Geradin D and Katsifis D, ‘An EU Competition Law Analysis of Online Display Advertising in the

Programmatic Age’ (2021) 17(4) European Competition Journal 59.

53 Ibid.

54 Aditya Bhattacharjea, ‘Ex Ante Regulation and the Digital Market

Can India Learn from Europe?’ (2023) 58(4) Indian Journal of Economics & Development 201. including Mexico and Korea. This section will further delve into the ex-ante regulation of digital markets in the above-mentioned foreign jurisdictions. A. European Union The European Union under the aegis of the European Commission (‘EC’) introduced the Digital Markets Act (‘DMA’) in November 2022. The European Parliament and the Council enacted the Regulation on September 14, 2022, in response to the European Commission's first proposal dated December 2020.55 It was then published in the Official Journal on October 12,

2022. On November 1, 2022, the DMA came into effect, and it has been in effect since May 2,

2023.56 Companies offering key platform services will be required to notify the EC and submit

all pertinent information within two months of that date provided that they satisfy the quantitative requirements. 57 Further, the Commission will have 45 working days to decide on a resolution naming a particular gatekeeper,58 who will then have a maximum of six months to make sure that the DMA's requirements are met. The DMA’s primary function includes effectuating a computable criterion and implementing retributive penalties in order to keep a close watch on platforms that function as private rulemakers by virtue of their dominance in the digital space. The Act designates companies with sizeable dominance in any of the ‘core platform services’ as ‘gatekeepers’.

59 These services include app stores, online search engines, social networking services, certain messaging services, video sharing platform services, virtual assistants, web browsers, cloud computing services, operating systems, online marketplaces and advertising services. 60 The DMA further imposes quantitative criteria’s such as an annual turnover of at least €7. 5 billion in each of the last three financial years in the EU or have an average market capitalisation of at least €75 billion in the last financial year as well as at least 45 million monthly active users in the Union and more than 10,000 annual active business users in the last 55 European Commission, ‘The Digital Markets Act: Ensuring Fair and Open Digital Markets’ https://digitalmarkets-act. ec. europa. eu/about-dma_en accessed 16 April 2025.

56 Article 54 of the Digital Markets Act, 2022 (European Union).

57 Article 3(3) of the Digital Markets Act, 2022 (European Union).

58 Article 3(4) of the Digital Markets Act, 2022 (European Union).

59 Article 2(1) of the Digital Markets Act, 2022 (European Union).

60 Article 2(2) of the Digital Markets Act, 2022 (European Union).

financial year. 61 To maintain equitable and transparent digital markets, gatekeepers must adhere to a number of requirements set out by the Digital Markets Act in their day-to-day operations. This will create opportunities for businesses to innovate and compete in marketplaces based on the value of their goods and services. The DMA has made it possible for end users to swiftly delete preinstalled applications and alter the default settings of operating systems, virtual assistants, and web browsers that direct users to the gatekeeper's goods and services and offer option panels for important services. Additionally, it enables other parties to interact with the gatekeeper's services and end users to install third-party applications or app stores that use or work with the gatekeeper's operating system.

However, a significant don’t imposed by the DMA is a ban on the gatekeepers from ranking their own products or services in a more favourable manner compared to those of third parties as well as a strict prohibition on requiring app developers to use certain of the gatekeeper’s services (such as payment systems or identity providers) in order to appear in app stores of the gatekeeper. 62 The DMA provides s stringent penalty in case of non-compliance, with the imposition of fines up to 10% of the company’s annual revenue accrued from global operations which can extend up to 20% in case of repeated infringements. Violations shall also attract periodic penalty payments of up to 5% of its daily worldwide turnover. 63 The implementation of the DMA is highly relevant in today’s day and age especially in the Indian landscape.

The do’s and don’t’s mentioned in the DMA widely touch upon cases against big techs before the CCI. The introduction of such a framework in India will help in regulating the highly volatile digital media sector and reduce the cases against Big Tech’s in India. B. United Kingdom The government of the United Kingdom (‘UK’) had introduced the Digital Markets, Competition and Consumers Bill before the Parliament in early 2023. In November, 2023 the

61 Saptaparno Ghosh, 'Explained | What is the EU Digital Markets Act?' (The Hindu, 4 November 2022)

accessed 15 January 2025. 62 European Commission, ‘The Digital Services Act: ensuring a safe and accountable online environment’ (Q&A, 15 December 2020) https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_2349 accessed 16 April 2025.

63 Article 31 of the Digital Markets Act, 2022 (European Union).

bill was passed by the House of Commons and is currently under review before the House of Lords. The Competition And Markets Authority (‘CMA’) will receive the authority and responsibility for the new system. The CMA's administrative division, the Digital Markets Unit (‘DMU’), will be in charge of daily regime decisions. 64 The CMA Board or a committee of the Board will make the choices that are most important from a strategic standpoint. The Bill takes a pro-active approach to regulating digital markets. It aims at prevent companies with Strategic Market Status (‘SMS’) from capitalising on their size to limit digital innovation or increase barriers to entry in adjacent digital markets. 65 Digital firms with a global turnover of over £25 billion, or UK turnover of over £1 billion, will fall within the scope of the Bill.

66 Firms with significant market power and a position of strategic influence in a digital activity will be eligible to be designated as having SMS by the CMA. 67 In addition to regulating each SMS-designated business's behaviour through specialised codes of conduct, the CMA has broad power to impose conduct restrictions that it deems suitable after a firm is identified as having SMS. When a business plans to make a "qualifying acquisition" in a target with UK activity, SMS-designated firms will also be required to notify the CMA of the purchases prior to completion. 68 Acquisitions that meet specific criteria i. e. beginning at 15% of the total transaction value, will qualify as long as the acquired equity shares exceed that level.

The Bill provides for a penalty for non-compliance with the provisions of the Bill which amounts to 10% of the total turnover (including group turnover), with probable daily fines of 5% of the daily turnover. 69 The implementation of the bill would help consumers and companies in the UK by guaranteeing that the leading digital companies treat businesses fairly, give consumers a wider 64 UK government, 'New pro-competition regime for digital markets' (Official Website of the Government of UK, 21 December 2023) accessed 15 January 2025. 65 Jenna Rennie and others, 'All change? The new Digital Markets, Competition and Consumers Bill' (White & Case Tech Newsflash, 10 May 2023) accessed 15 January 2025.

66 Section 7(2) of the Digital Markets, Competition and Consumers Bill, 2023 (United Kingdom).

67 Ioannis Lianos, ‘Digital Gatekeepers and Competition Law

Rethinking the European Commission’s Approach’ (2021) 47(2) European Law Review 147.

68 See note 63, above.

69 Dr W Kuan Hon, 'UK

An overview of the Digital Markets, Competition and Consumers Bill' (Data Guidance, October 2023) accessed

15 January 2025.

variety of options and bring down prices for UK consumers. C. Germany The European Commission and European Parliament have made it amply clear that they expect the enforcement of the DMA to be made through private enforcement actions by affected businesses and end-users. 70 Germany is the first Member State to propose specific rules for DMA-based private enforcement. On 20 September 2022, the Federal Ministry for Economic Affairs and Climate Action published the draft 11th amendment of the German Competition Act (GWB), making proposals for private enforcement of the DMA and to harmonization of those provisions with those for competition law. 71 The 10th Amendment to the German Competition Act led to the introduction of a new core provision namely Section 19a.

Modernising abuse control in view of the difficulties in preserving competition in the digital economy is a crucial component of the amendment. Most importantly, the change makes it possible for the Bundeskartellamt to step in earlier, quicker, and more forcefully when businesses that are crucial to market competition engage in particular kinds of behaviour. The recently added clause lays out a two-step process: firstly, an initiative may be deemed of utmost importance by the Bundeskartellamt, which will take into account its resources and strategic location. Secondly, even in markets where the corporation is not yet dominant, the Bundeskartellamt has the authority to step in and forbid soon-to-be dominant activity. 72 D. Japan In Japan, ordinary competition law governs digital marketplaces. The TFDPA became operative in February of 2021.

At first, it was limited to online markets and app stores. The TFDPA's

70 Articles 5, 6 & 7 of the Digital Markets Act, 2022 (European Union).

71 Miranda Cole, 'Private enforcement of the Digital Markets Act

Germany as a frontrunner?' (Norton Rose Fullbright Publications, March 2023) accessed 15 January 2025.

72 Oecd, 'Ex-Ante Regulation and Competition in Digital Markets – Note by Germany' (DIRECTORATE FOR

FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE,

2021) accessed 15 January 2025.

purview was extended to cover digital ad services in July 2022. 73 It is a business-to-business rule that requires some platform operators to adhere to a code of conduct. It applies to Specified Digital Platform Providers such as app stores, digital ads platforms, online shopping marketplaces as well as Media-integrated digital ad platform providers. 74 The Act mandates that platform providers publish their terms and conditions along with other information (like standards for deal rejections and search ranking); voluntarily create policies and processes to guarantee openness and equity on their platforms; and annually submit a report to METI that includes a self-evaluation outlining their compliance efforts. 75 The government is thinking about enacting new ex-ante rules that would target companies that make wearable technology, voice assistants, and mobile ecosystems.

Potential issues with competition in various tiers of mobile ecosystems, such as operating systems, browsers, app stores, search engines, and other digital goods, would be addressed by the laws. Though the exact parameters and structure of any new system are still unknown, the legislation would resemble the EU Digital Markets Act. The Digital Market Competition Headquarters (‘DMCH’), an inter-ministerial organisation, is now looking into the necessity for additional laws. 76 E. Australia On 11 November 2022, the Australian Competition & Consumer Commission (‘ACCC’) issued its fifth interim report as a part of its five-year Digital Platform Services Inquiry initiative. 77 The ACCC reported that, given the dynamic nature of the digital platform markets, new ex-ante laws will be the only enabler of a quicker, adaptable and efficient framework to

73 Iria Kitsou, Fay Davies & Xavier Quer Zamora, 'Digital Markets in Japan' (Cleary Gottlieb, 2020)

accessed 15 January 2025. 74 Article 2(6) of the Act on Improving Transparency and Fairness of Digital Platforms, 2021 (Japan).

75 See note 70, above.

76 Clifford Chance, 'Online mall operators and app store operators now subject to regulation, and additional entities to be covered in future' (Clifford Chance Blogs, August 2021) accessed 15 January 2025.

77 Australian Competition and Consumer Commission, Digital Platform Services Inquiry

September 2022 Interim Report – Regulatory Reform (Interim Report, 11 November 2022) https://www. accc. gov. au/aboutus/publications/serial-publications/digital-platform-services-inquiry-2020-25-reports/digital-platform-servicesinquiry-september-2022-interim-report-regulatory-reform accessed 16 April 2025. mitigate the harm caused to consumers and competition in the digital platform markets. A new authority to impose service-specific code of conduct on "designated" digital platforms that are based on legally defined principles is the most important suggested reform in the report. While this is probably more concentrated and thorough, it is comparable to the measures used in Germany, Japan, and the United Kingdom (and anticipated there as well). 78 It also shows a clear progression towards the style of regulation modelled on the European Commission’s DMA.

According to the ACCC, a code regime tailored to individual services would enable policy makers to give priority to those platforms and services that pose the biggest dangers to competition. 79 The ACCC also believes that the introduction of service-specific codes will give flexibility in taking into account variations in services offered by various digital platforms. Significant differences have been noted by the ACCC between the various digital platforms' business structures and the services they offer. As suggested by the ACCC, the Treasurer has instantaneously launched a consultation to examine the necessity of a new regulatory framework for digital platforms that would protect consumers and promote competition.

On December 20, 2022, the government issued a consultation paper titled "Digital Platforms Government consultation on ACCC's regulatory reform recommendations" which was made open for recommendations. 80 VI.

CONCLUSION

One of the most complex challenges which the competition regulators face world-wide is regulating digital markets. In India, the CCI has taken a neutral stance against competition cases in the e-commerce sector as it has chosen not intervene since it does not want to hamper innovation in the market. However, the CCI has not been so lenient towards smartphone manufacturers and the cases of abuse of dominance that have been levelled against them. The 78 Thomas Jones, Matthew Bovaird and Dylan McGirr, 'Upping the ante: Australian Government consults on exante regulation of digital platforms' (Bird & Bird, January 2023) accessed 15 January 2025. 79 Angela Flannery, 'Regulation of digital platform services in Australia: tracking the European Union' (International Bar Association, 24 July 2023) accessed 15 January 2025.

80 Justin Hendry , 'Big Tech facing ex ante competition regime in Australia' (INNOVATIONAUS , 8 December 2023) accessed 15 January 2025. most recent case being the penalty of over 1000 crore being imposed by the CCI against Google and being upheld by NCLAT. Recently India has seen the introduction of the coveted Digital Personal Data Protection (‘DPDP’) Act, 2023 as well as the Indian Competition (Amendment) Act, 2023 which have sought to make monumental changes to the competition, technological and data privacy regime of our country. There is a need for an ex-ante regulation governing digital sphere in India however caution must be exercised while implementing the same so as to maintain a balance between the above-mentioned laws. It is prayed that there be syngergy between the laws so as to avoid mishaps in the implementation of the law.

Mature competition jurisdictions like the EU, UK, Germany and Japan among others have already formulated/ or are in the process of formulating an ex-ante law. The Digital Markets Act of the EU has been showing a lot of promise since its inception and hence, they serve as a good reference point for India’s own ex-ante law to govern the digital landscape.