Analysis of Competition Law Issues in the Facebook-Jio Deal

By: Abishek TK

Jio – Facebook Crossover: A Financial Entente:

Facebook is one of the only apps used by almost 2.5 Billion users, making the social media platform the world’s largest. While Facebook conquers the world, Whatsapp conquers India with approximately 200 million users, making it the country’s largest. On 21st April 2020, Facebook CEO, Mark Zuckerberg, told the world that the Facebook was teaming up with Reliance Industries. Facebook had purchased a total of 9.99% stake in the Reliance Industries. The 5.7-billion-dollar deal pushes Reliance Industries ahead in its plans of facilitating the launch of its new commerce business. In 2019, Reliance Industries Chairman Mukesh Ambani had other primary contributors to his debt reduction plan with approximately $15 billion deal with Saudi Aramco for a 20% stake in Reliance Industries’ refining and petrochemicals business and a ₹7000 crore for a 49% sale in its fuel retail joint venture to a British firm BP. Usually, any merger between companies or corporations is a tedious process. Out of some approvals, be it regulatory or otherwise, the most critical one is the approval of Competition Commission of India. In order to complete a deal that crosses the thresholds given under Sec. 5 of the Competition Act, 2002[1], the approval by Competition Commission of India is compulsory. Another rule is that, Section 6(2) of the Competition Act, 2002, examined with Regulation 5 of the Combination Regulation confirms a suspensory reign, i.e., the approval must be obtained before the deal is finalized within the United States. Though the deal sounds bold and strong, which it does, can still encounter anti-trust issues. Starting with the multi-billion-dollar investment into Jio will have to be appraised and authorized by means of India’s opposition regulator. For this to happen, the Competition Commission of India will have to go forward and look at the proposed deal and verify that it does not cause appreciable adverse effect on competition within the marketplace. The responsibility of the Competition Commission of India is to analyze now not only the capacity of destructive results on competition how much ever additionally the capability worries it may offer upward rush to. It would be more intriguing and interesting to see if the minority stake purchase in India’s major telecom empire would provide any regulations to Facebook.

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Section 4 of Competition Act, 2002 sets down arrangements identifying with maltreatment of predominance which obviously expresses that a prevailing element ought not utilize its situation of solidarity to make hurt the contenders and customers in the business sectors of the nation. The Competition Act, 2002 in segment 19(4) has set out specific variables which help in deciding if an element is predominant in an applicable market or not. Prior to deciding if the arrangement among Facebook and Jio Platforms can prompt the act of maltreatment of strength by the two substances, it is basic to realize whether Facebook’s WhatsApp pay and Jio Platform’s JioMart are prevailing in their pertinent market or not.

Establishing Dominance:

Jio and Facebook are both emperors in their respective fields. According to the Telecom Regulatory Authority of India, 32% stake is owned by Jio in the 1.15 billion Indian mobile services industry. It possesses the highest number of customer base and revenue-sharing share in the telecom industry. This means, Jio has an overall customer base of 369.93 million, exceeding its rivals, Bharti Airtel and Vodafone- Idea. Regarding Facebook, it basically operated via three platforms- Facebook, Instagram and Whatsapp. As for Whatsapp, it currently has a solid 400 million users in India[2]. These 400 million users are among the 600 million people who get right of entry of internet. A fragment of effectiveness compared to Whatsapp can be seen in applications like Hike, WeChat and Telegram.

JioMart is an online staple help which gives conveyance administrations of basic food item and fundamental things from close by kirana stores of the nation. JioMart right now works in just three spots of the nation for example Navi Mumbai, Thane and Kalyan. The important market of JioMart is by all accounts an online staple conveyance administration. It is appropriate to take note of that JioMart in this market has under 5% piece of the pie and furthermore is another major part in this market. It can influence neither the opposition nor the rivals in the online basic food item administration market of the nation. Subsequently, in the wake of investigating the components referenced in segment 19(4) of the Competition Act, 2002, it tends to be reasoned that JioMart is certainly not a prevailing part in its important market.

Jio is looking forward to revolutionize ‘JioMart’ in order to merge small and medium sized ‘kirana’ businesses. This would firstly enhance mother-pop shops within the domestic and local markets by tying them to the digital platforms. Once this is over, it would try to penetrate another market by utilizing the dominance of Whatsapp. If all these are successful, Whatsapp might allow JioMart to function through the messaging platform itself. If this is carried out in the manner that Whatsapp comes with default JioMart platform, it could cause an abuse of dominance under Section 4(2)(d) as downloading Whatsapp would be the main agreement the JioMart will be kind of a given in itself. The disadvantage in that kind of a strategy is, customers will not be able to use any other embed e-commerce portal on Whatsapp. This will become unfair and cause disturbances in the market as it might leave the customers with no choice but to accept the given deal.

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The said deal may have an impact on payment apps due to the establishment of Whatsapp Pay project long-stalled by Facebook. The partnership with Jio will establish the payment service for itself. Once Whatsapp Pay enters the field, industry players like Google Pay, Paytm, and Pay will face a tough competition. People will easily be able to text and pay simultaneously without switching apps. To keep things in balance, the Competition Commission of India will have to consider whether Facebook and Jio would become dominant in the relevant markets, potentially abusing the dominant position in order to monopolize the field using Whatsapp Pay. Since the combined power of Jio and Facebook would make it difficult for any other platform to compete, the CCI should analyze whether it would be likely that any anti-competitive acts by Jio or Facebook would create new monopoly in the other relevant markets.

Appreciable Adverse Effect on Competition:

Determining the resources and market positions of the combines techno-heads is difficult, especially in the technology sector. Google LLC[3], CCI found that there is a need to now not only depict the standard applicable marketplace but also related to relevant markets which have been anguished by the behavior of the concerned parties. Section 20 (4) lists that factors that the Competition Commission of India should not forget to include if there is any substantial destructive effect on the competition arising from the said combination.

The quintessence of this combination is to check for horizontal or vertical overlaps. If there is no appearance of horizontal overlaps, there is a strong possibility of vertical integration. For example, Jio introduces internet access to smartphones, smartphones with internet can access Whatsapp, which can ultimately be combined with JioMart. Though this is not the ideal vertical integration, but the use of dominant function in a single market to move into a new marketplace would possibly be to have an adverse effect on the natural competition in the ‘physical’ trade market. Strategic investment, when seeks to impale a specific segment by making use of the leverage on their respective fields to arrive at a completely new product, criteria has to be comprehensive in order to check and verify the potential adverse effect on competition, if any. The United States court imposed 5 billion dollars fine on Facebook for violation of privacy is itself a warning on the Indian regulators to intervening in this a way achieving the deal specifically, to protect the Indian Start-Up movement, which is probably an important bulkhead of the Digital India ship.

Platform Neutrality:

Platform Neutrality, as the name proposes, comprises of impartiality toward any item showed on a market. This standard is abused in occurrences of combination, in which the stage holds a double job through acting each as a mediator and a commercial center contender. Since the stage is a pool of customer insights, it offers the owner business endeavor and side to improve its administrations through dominatingly dispensing bogus hunt rankings and serving one-sided pointers sooner than its customers. Courses of action like these outcomes in the special treatment being concurred to the office’s in-living arrangement cloud kitchen brands, building up an irregularity in the reasonable resistance in the pertinent zone.

It is appropriate to take note that the monstrous e-exchange associations, for example, Amazon and Flipkart have constantly been underneath the examination of the Courts for disregarding the stage impartiality strategies. All India Online Vendors Association had blamed each of those organizations for manhandling their strength inside the relevant commercial center by giving special solutions for there to some degree possessed producers. After due examinations concerning this depends, the CCI had unnoticed the cases of them disregarding any popular rivalry standards. Notwithstanding, rehashed charges by the method of equivalent organizations made the NCLAT award a test into this issue again.

Network Effect:

The Network Effect, additionally called network externality, is the increase picked up by method of the officeholder clients while an additional individual joins the gathering. Its utilization is particularly generally far reaching inside the time area in which the enormous network is a bit of leeway to the clients and the got data fills in as a little something extra for its proprietor. Henceforth, there lies no competition inside the truth that having an enormous base of records can bring about an endeavor achieving a prevailing situation inside the market. This predominance, in sure occasions, can go about as an essential for organizations in leading enemy of forceful conduct. The organizations with the guide of keeping up their matchless quality in a solitary pertinent market contribution to each other material market, in this manner mishandling its energy to develop predominant in both those business sectors. Such moves are named as utilizing and are denied underneath Section four(2)(e) of the Competition Act, 2002 (“the Act”).

Carefully predominant associations like Google have utilized their strength in the past, utilizing its got realities to sell its own administrations for example Google Flights, Google Maps, etc. The creators battle that the arrangement whenever did, might be each other case of this type of misuse. As each Facebook and Jio are at prevailing situations in their particular business sectors, they have an unbridled admittance to realities which can be utilized for their own one of a kind business advantage. For example, WhatsApp by means of its settlement with JioMart can assemble a tremendous heap of data at the admission styles of the customers in India, which later can be used for the ad of the JioMart stage through Facebook. Also, if WhatsApp goes to a choice to make Jio Payments Bank on the grounds that the on line UPI-principally based value elective, it’ll achieve Reliance Companies accessing its total client base, which incorporate the records of its adversary telecom partnerships. Each one of those points of interest blended have the capacity of making Jio and its auxiliaries predominant exclusively dependent on the realities that it recognizes associations own, subsequently which remember it for the ambit of utilizing underneath Indian Competition Act.

Deep Discounting:

Deep Discounting, normally named as ruthless evaluating, happens while a monetarily wealthy organization costs its item at a significantly decline charge contrasted with the contrary organizations inside the commercial center. While the partnerships secure such developments as a component of their expansion approach, the overwhelming development inside the reliance of its client’s outcomes in them achieving a place of intensity, unjustly. This can be mounted by method of depending on Section 19(4)(f) of the Act, which offers for ‘buyer reliance’ as one of the justification for evaluating the predominance of an organization. So as to downsize the burden of such enemy of forceful tendencies, such estimating has been described as maltreatment of strength under Section four(2)(a)(ii) of the Act, making it violative of the standards that ensure honest rivalry in the business sectors.

Jio, inside the past, has been blamed for savage valuing for its net administrations. In truth, following this system, it has developed to be one in everything about most significant telecom producers in India. Subsequently, the creators battle that the arrangement has the capacity of monetarily backing the stage to present profound limits for their items, building up a tremendous distinction in the expenses inside the market. This differential valuing by method of drawing in the clients by means of its uncommon decreases can pressure out the contrary e-staple brands inside the relevant commercial center. While these limits may prompt a fast time-frame advantage for its clients, the minimization in their decisions will achieve a drawn out misfortune. JioMart by utilizing sorting out its imposing business model will in the end be equipped for help its expenses unnecessarily, in this way constraining its customers to search for their items at some random charges.

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The objective of Competition Act, 2002 is to guarantee the free progression of exchange and keep the elements from stopping rivalry on the lookout. In the 21st century, the idea of shopper government assistance can’t be deserted in any of the situations. The intensity of the CCI gave by the Competition Act, 2002 is restricted to a degree. Indian Competition Law doesn’t punish endeavor to turn into a prevailing element and this is the greatest downside.

In the current arrangement, Facebook and Jio Platforms through its administrations WhatsApp Pay and JioMart separately will endeavor to get prevailing in their pertinent market by utilizing unscrupulous strategic policies. Notwithstanding, CCI can’t stop such practices because of absence of arrangements in the Competition Act, 2002. The ideal opportunity for a change has shown up and the Indian Legislature should embed such arrangements in the demonstration so as to enable the CCI to manage such unreasonable practices in the nation.

[1] Section 5, Competition Act, 2002.

[2] Manish Singh, WhatsApp reaches 400 million users in India, Tech Crunch, (26.07.2020),

[3] Umar Javeed v. Google LLC, Case No. 39 of 2018, dated 16-4-2019.