CCI: Integration of Google Meet with Gmail not Violative of the Provisions under the Competition Act

The CCI recently held that Google did not violate the provisions of Section 4(2) (e) of the Competition Act, 2002 for integrating the Meet App into the Gmail App.

The Competition Commission of India (CCI) in the case of Baglekar Akash Kumar v. Google LLC recently decided on the issue of Google’s 'dominant position' in the emailing and direct messaging market. This case was filed by a Law student (Informant) against Google LLC and Google India Digital Services Private Limited under Section 19(1) (a) of the Competition Act, 2002 (Act) alleging contravention of the provisions of Section 4(2) (e) of the Act.  

Google LLC is an established multinational conglomerate specialising in internet related services and products. Google's business model is based on the interaction between the online products and services it offers free of charge to users on one hand, and on the other, its online advertising services, from which it derives majority of its revenues. Based on this, the Informant stated that Gmail is an App from Google, where the users get all their emails, direct messages, etc., and due to this Gmail enjoys a 'dominant position' in the emailing and direct messaging market.

I.  Whether Google has a 'dominant position' in the emailing and direct messaging market?

Gmail is in-built in almost every smartphone, laptop and computer system. Meet is a video- conferencing App from Google, where all kinds of virtual conferences and meetings happen. Due to the onset of COVID- 19 pandemic, almost all the work was happening virtually through video conferencing.

The Informant had argued that Google is a dominant player in the internet related services and products, has integrated the Meet App into the Gmail App which amounts to abuse of dominant position by Google, by use of its dominant position in one relevant market to enter into other relevant market as per Section 4(2)(e) of the Act.
Following submissions were made by Google to counter the claims made by the Informant:
  • Google claimed that the argument forwarded by the Informant was without any evidence and foundational basis, as there is no relevant market for internet related services and products and even if such market exists, Google would not be dominant in such a market.
  • It was also argued that Gmail is not dominant in 'emailing and direct messaging" in India as it faces strong competition from a variety of messaging services, many of which have a comparable or superior position to Gmail.
  • Adding functionality to the Gmail app was a product improvement that benefitted Gmail users and prohibiting such product improvements only harms consumers.
  • Companies like Facebook and Microsoft too offer similar functionality and introduction of a Meet tab on Gmail accounts is no more than Google meeting the competition for the purposes of the Act.
  • Lastly, it was pointed out that even if Google were dominant in email and direct messaging, introducing a Meet tab is not anti-competitive as Gmail users:
o   were not compelled or coerced to use Meet,
o   can easily switch off the Meet tab, and
o   can use rival video-conferencing services and thus there is no foreclosure of rivals.


II. Google’s challenge against the locus of the Informant:

Google had submitted before the CCI that the allegations made by the Informant, were unsubstantiated and based only on conjectures, hypothesis and apprehension. Google while relied on the judgement in Dr. L.H. Hiranandani Hospital v. CCI, where the National Company Law Appellate Tribunal (NCLAT) had recently cautioned against pursuing unsubstantiated claims by complainants with ‘oblique motives’.

The Supreme Court of India in its judgement passed in Samir Agrawal v. Competition Commission of India settled the issue related to locus of the Informant under the Act by holding that when the CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority (the NCLAT), must be kept open in public interest, so as to subserve the high public purpose of the Act.

The CCI therefore rejected the contention made by Google claiming that the locus of the Informant was without any merit. The proceedings before CCI are inquisitorial and in rem in nature and any member of the public can bring any anti-competitive behaviour to the notice of the CCI by filing an Information as per the provisions of the Act and the regulations framed under it.

 III. Whether the integration of Google Meet into the Gmail contravenes the provisions of Section 4(2)(e) of the Competition Act, 2002?

The Informant claimed that integration of Google Meet (a video conferencing facility offered by Google) into the Gmail (an emailing facility offered by Google) by Google contravenes the provisions of Section 4(2)(e) of the Act. For the said purpose, delineation of the relevant market is essential to ascertain dominance and for analysing the alleged abusive conduct, if any.

The CCI relied on its decision In Re: Harshita Chawla And WhatsApp Inc. ('WhatsApp Case') noting that consumer communications services can be sub-segmented based on different parameters e.g. on the basis of functionality, some apps enable real-time communication in various forms, such as voice and multimedia messaging, video chat, group chat, voice call, sharing of location, etc., while others provide services such as communication with a wider set of people in an impersonal setting such as sharing status and posts.

While some consumer communications apps are proprietary in nature, i.e. available on only one operating system such as FaceTime and iMessage service available on Apple's iPhones, while others operate as over-the-top (OTT) apps offered for download on multiple operating systems, e.g. WhatsApp and Facebook are available on a variety of mobile operating systems, including iOS, Android, Windows Phone etc. Furthermore, the segmentation can also be based on whether a set of consumer communications apps are available for all types of devices, or only for particular type(s) of device. For example, while Facebook is available on smartphones as well as PCs, WhatsApp essentially is a smartphone app.

CCI was cognizant of the peculiar features which these consumer communication apps possess, where for some functions they may appear substitutable while not so for others, making it all the more challenging to compartmentalize them into water tight categories. Thus, it is important to identify the primary or most dominant feature(s) of an app to categorise it into a particular relevant market.

Services like Gmail, Yahoo Mail, as well as direct messaging services (e.g. WhatsApp, Telegram, etc.) in one relevant market. However, both of these communication services exhibit different features and are thus, used for different purposes such as:
  • Email services do not exhibit any network effects, i.e. a user of Gmail can send emails to a user of any other email service provider, like Yahoo, Outlook, etc. This is not the case with direct messaging services like WhatsApp as user of WhatsApp can send messages to only a user of WhatsApp,
  • Email services are primarily used for formal communications whereas direct messaging services are used for informal messaging or personal chat,
  • WhatsApp like services have in-built features to record audio/video messages whereas email services do not have such in-built features,
  • WhatsApp like services are primarily Over-The-Top (OTT) messaging Apps which are generally accessed through a smartphone device and are linked to a mobile number, which have features of communicating personally, both one-to-one and group. On the other hand, email services are not linked to a particular device or number, etc.
In view of the foregoing, the CCI was of the view that primary relevant product market should be the 'market for providing email services'.
Google in its submissions compared the video conferencing services offered by Google Meet App with the video conferencing offered by WhatsApp, Truecaller, Facebook messenger, Instagram, Telegram, etc. The CCI notes that such comparison by Google was erroneous due to the difference in scale and functionalities such as sharing of screen etc. Number of participants allowed in video conferencing by such apps being very limited, the utility of these apps for video conferencing purposes, is also limited. A more appropriate comparison of Google Meet would be Zoom, Skype, Cisco Webex, Microsoft Teams, etc. Therefore, the appropriate secondary relevant product market in terms of the functionalities would be the 'market for providing specialised video conferencing services'.

Further, for the purpose of the instant analysis, the relevant geographic market will be considered as the whole of India as conditions of competition are homogeneous. Accordingly, the relevant markets for the purpose of assessment of present case would be 'the market for providing email services in India' and 'the market for providing specialised video conferencing services in India'.

Holding by the Competition Commission of India:

Google in the case had claimed that Gmail is not dominant in emailing and direct messaging in India, and that Gmail faces strong competition from a variety of messaging services, many of which have a comparable or superior position to Gmail. Since the Informant did not place any substantive material on record in support of the contentions posed, the CCI was of the opinion that regardless of whether Gmail is a dominant app or not in the relevant market of providing email services in India, the conduct of Google did not violate the provisions of Section 4(2) (e) of the Act.

The reason given by CCI was that the users of Gmail were not forced to necessarily use Google Meet, and there were no adverse consequences on the users of Gmail for not using Google Meet, such as withdrawal of Gmail or any of its functionalities or other services that are so far being provided by Google. A Gmail user at their 'free will' can use any of the competing video conferencing apps.  

It was also pointed out that anyone with a Google Account (not necessarily a Gmail User) can create an online meeting using Google Meet. Further, for creating a Google account, the user need not be a user of Gmail. He/she can use email ID created on any other platform for creating a Google account. Thus, Google Meet is available as an independent app outside the Gmail ecosystem also. Consumers are free to choose from an array of video-conferencing Apps such as Zoom, Skype, Cisco Webex, We Conference, Microsoft Teams, and Google Meet would be competing with the like of such Apps for providing services.

The CCI also assessed the integration of Meet tab within Gmail from the perspective of imposition of supplementary obligations as provided under Section 4(2) (d) of the Act. The CCI was of the opinion that the users have the choice to use either of the Apps with all their functionalities without necessarily having to use the other. Even though Meet tab has been incorporated in the Gmail app, Gmail does not coerce users to use Meet exclusively as submitted by Google and the consumers are also at freewill to use either Meet or any other Video Conferencing app. Finally, it was held by the CCI that the case made out against Google was not maintainable as their activities were not in contravention of the provisions of Section 4 of the Act