Online News Publishers Qua News Aggregators: A Competition Law Tussle In India

Luthra and Luthra Law Offices India


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Print media is slowly losing its sheen. The last two decades have seen a migration of readers from traditional print media to online news. The migration is inevitable as online news...
India Antitrust/Competition Law
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Print media is slowly losing its sheen. The last two decades have seen a migration of readers from traditional print media to online news. The migration is inevitable as online news is easier to access, faster, generally perceived to be free of cost and interactive. Nevertheless, it has become routine to come across appeals by online news publishers urging the readers to subscribe to online news for their existence and sustainability. This raises a pertinent question- how did such a thriving industry decline to a stage whereby they have been compelled to appeal for patronage and subscription?1

At the core of this issue is the lack of countervailing power of news publishers qua digital platforms operating as news aggregators as well as ad intermediaries, and resultantly, a steep fall in advertising revenues for news publishers. A news publisher has to incur huge operational cost to collect, curate and serve the content to their audience.2 While online news may seem 'free' to a viewer at the face of it, these 'zero-price' markets get cross-subsidized by the advertisement revenue. Many of these news publishers were, earlier, operative in physical markets where they had complete access and control over their advertising business. While distributing content has become easier for them digitally, the lack of revenue is a threat to quality and plurality of online news content.

Digital markets are 'Attention Markets'. So, the more traffic and visibility a news publisher receives, the more advertising revenue it gets. News publishers depend on news aggregators such as popular search engines to get visibility from viewers and revenues from advertisers. Google is one of the biggest news aggregators which acts as a medium between advertisers and online news media. It has become a necessary and indispensable trading partner for news publishers. Google's dominance is not anti-competitive by default. It is a fundamental adage of competition policy that "big is not bad". An entity may garner significance as a result of innovation, its business model or more efficient operations. It can emerge as a 'winner' amidst aggressive competition, ultimately benefitting the news audience.3

The dominance of news aggregators may, however, be a threat to competition in the market, if they abuse this position of strength. The UK's Competition & Markets Authority ('CMA') concluded in its Market Study that Google has a powerful position at every stage of the intermediation chain, especially as a publisher ad server. Google and Facebook have large ecosystems around their core services with many complementary goods and services- causing integration in services in the ad tech chain which can help increase technical efficiency for viewer's benefit. However, this can turn anti-competitive/abusive if the integration is used to leverage the dominant position in one market into insulating/entering other markets like digital advertising.4 For example, Google's dominance in general web search services can help insulate its position in digital advertising where it competes directly with news publishers. Google and Facebook, owing to their significant market power in other markets, have access to larger amounts of the two critical inputs in the digital advertising market- viewer attention and data, helping them generate larger advertising revenue.

The struggle of survival in the digital space is not just limited to small media outlets. It also covers outlets with a legacy in traditional news media. An information alleging abuse of dominance by Google was filed by the Digital News Publishers Association ('DNPA') before the Competition Commission of India ('CCI').5 The DNPA represents 17 media publishers, including prominent names such as Dainik Jagran, Dainik Bhaskar, Indian Express, India Today Group, Times Group, Hindustan Times, Zee Media, ABP Network and NDTV, amongst others.

This was followed by two more complaints of a similar nature filed by the Indian Newspaper Society ('INS') and the News Broadcasters & Digital Association ('NBDA').6 The INS represents legacy news outlets like The Tribune, The Statesman, The Hindu, Hindustan Times and Times of India. Similarly, the NBDA represents significant names in news media like TV18 Broadcast Limited, Zee News and NDTV.

The CCI clubbed the three cases together and directed the Director General to investigate the following allegations under Section 4 of the Competition Act, 2002 ('Competition Act'):

  • Whether Google unilaterally and arbitrarily dictates the terms of its agreements with online news publishers in distribution of advertising revenue;
  • By refusing a fair value for the content, whether Google discourages innovation and technical development of news publisher's services;
  • Whether Google denies market access to news publishers in the digital advertising space by its unfair decisions; and,
  • Without producing any news of its own, whether Google has steadily grown its influence in the news space by effectively using its dominance in other relevant markets.

While ordering the investigation, the CCI also took note of the bargaining power imbalance issue and lack of transparency in the ad tech services, which does not allow publishers to optimize the yield on their ad inventory.

Incidentally, similar issues have garnered the attention of Competition Authorities across the globe, including the European Commission7, the Australian Competition and Consumer Commission8, UK CMA9, the French Competition Authority10 and the Canadian Competition Bureau11. Some of the anti-competitive practices by digital platforms in the online news market as identified by Competition authorities and commentators are as follows:

  • 'Snippets' are summaries of content that are displayed next to news links on general search services. While the 'snippets' feature may help attract attention to a relevant link, it reduces incentive of the reader to click on the news publisher's website for accessing the entire content and there is generally no negotiation on paying remuneration to news publishers for 'snippets' extracted from their content.
  • Digital platforms have implemented optimizing formats for the loading and display of webpages on mobile devices which helps a news reader in loading news content faster on their mobiles but restricts them to stay within the ecosystem of the digital platform, acting like a "walled garden". As a result, news readers are diverted from directly accessing the websites and mobile applications of news publishers.
  • Digital platforms collect valuable data from news readers through their tools and products, which the original news publisher is given limited access to, and then use it to derive a competitive advantage by displaying valuable advertising such as target advertising.
  • Digital platforms change their display algorithm affecting aspects like ranking criteria, without sufficient explanation which affects the monetization of news content by publishers and accordingly, give rise to doubts of commercial bias.
  • The fee charged by digital platforms for ad intermediation services in display advertising from news publishers is very high (at least 35% of the value of advertising revenue). There is no transparency about the distribution of remuneration.12

While sustainability of online journalism needs to be protected, one must also pay heed to the evolving nature of digital markets and the needs of the news readers. The National Company Law Appellate Tribunal has categorically held that "For proving abuse of dominance under Section 4, effect analysis is required to be done and the test to be employed in the effect analysis is whether the abusive conduct is anti-competitive or not."13 Further, once the amendment to Section 19 of the Competition Act is notified, the CCI will look into the 'benefit or harm' to consumers while analyzing anti-competitive effects.

Dealing with an allegation of abuse of dominance, the CCI has held that "Appreciation of the context and rationale becomes all the more important in the cases of buyer power, lest it increase the risk of large industrial buyers being penalised for what may be an attempt to negotiate competitive terms with suppliers or simply a prudent business decision having pro-competitive effects in the market for the final product in terms of lower prices, larger availability, greater choice etc."14 The CCI must test whether there is any legitimate and objective necessity for the enterprise to impose the impugned condition. Thus, the pro-competitive effects of the presence of players, such as Google, in news aggregation must be considered. These include provision of traffic to smaller publishers, increased technical efficiency, ease of use for consumers through mobile-friendly formats, enhanced accessibility through features like Google showcase and Snippets etc.

Currently, Google's operations in news aggregation run on the following set of pro-competitive principles:

  • Quality journalism matters- Readers must be able to access quality news readily;
  • Financial stability requires innovation- Publishers must incorporate technological infrastructure that helps connect with and serve the audience;
  • Diversity in the digital news ecosystem- An open digital ecosystem that balances the needs of publishers and readers must be put in place to ensure even smaller publishers get opportunities based on their quality; and,
  • New technology presents new opportunities- Reader engagement must be driven by experimenting with new formats and innovative ways to distribute content.15

The Way Forward

It is pertinent to test whether the CCI, while examining these issues, can effectively remedy the anti-competitive slope of the ad tech chain. The CCI has previously exercised restraint in setting an adequate price stating that "As far as the allegation of the Informant with regard to charging of high convenience fee from consumers and sharing a part thereof with cinema theatre owners is concerned, the Commission is of the view that it cannot act as a price regulator to determine the correct fee".16 So, the CCI might refrain from dictating the right model of revenue sharing between news aggregators and the news publishers who garner the content.

Further, the ongoing proceedings before the CCI can take years to conclude as there is no legal deadline for bringing an antitrust investigation to an end. The duration is dependent on a number of factors, including the complexity of the case, the exercise of the Opposite Party's rights such as appeals and the extent of cooperation by the parties.

Considering the pitfalls of ex-post inquiry, the ex-ante regulation of digital gatekeepers under the proposed Digital Competition Bill may offer a solution to the tussle. This is in consonance with the recommendations of the Parliamentary Standing Committee on Finance, which observed that Big Tech companies or 'Systemically Important Digital Intermediaries' ('SIDls'), once classified as such, must establish contracts with the news publishers through a fair and transparent process.17

It is viable to follow the footsteps of Australia's amended media law ushered by the Australian Competition and Consumer Commission, namely the 'News Media and Digital Platforms Mandatory Bargaining Code', wherein a mechanism has been put in place to decide on the final price that news aggregating platforms will have to pay Australian news publishers for using their content to generate revenue.18 Under the new Code, the platform and the news publisher will get a two-month period to mediate and enter deals, failing which, arbitration can be initiated as a last resort.19 A similar approach has been followed by Canada in its 'Online News Act' encouraging fair revenue sharing between digital platforms and news outlets.20 Both the legislations also provide for collective bargaining by news outlets. Lessons from the French competition regulator's experience also sheds light that aggregators can be booked if these negotiations are not undertaken in 'good faith'.21

There have been indications from that the Government in the recent past that it may suitably modify the Information Technology Act, 2000 to protect Indian media from the Big tech giants and this "work in progress" is likely to ensure that the Indian media may not continue to be at a disadvantage when dealing with digital platforms.22

Digital platforms may also consider negotiating the revenue model directly with publishers taking cue from the Spanish experience. A leading news aggregator has returned to Spain after they had previously discontinued news services in the country due to local legislation that put a collective licensing fee on the digital platform for using content for its snippets. The new Royal Decree implementing the European Copyright Directive will allow Spanish media outlets, irrespective of their size, to make their own decisions about how their content can be discovered and how they want to make money with that content, through mutual agreements with news aggregators. This will level the playing field between traditional media, who backed the old system, against a new breed of online outlets, who expects more revenues from direct agreements than through their share of the collective fee.23

Thus, regulatory provisions facilitating a mutual resolution between the news publishers and news aggregators serve as a viable prospect to resolve the tussle. The parties can agree on a revenue sharing agreement that serves the interests of both and ensures sustainability of journalism. This remedy will also be equitable as there is huge diversity within online news publishers. Further, this will also help digital platforms/SIDIs to attain regulatory certainty under the proposed ex-ante obligations. A speedy and effective solution is essential to ensure that the innovation and evolution of digital markets stands undeterred.


1. NPR, 'Digital News Sites Fight To Survive As Online Ad Dollars Dry Up' Digital News Sites Fight To Survive As Online Ad Dollars Dry Up : NPR.

2. David Ryfe, 'The Economics of News and the Practice of News Production' The Economics of News and the Practice of News Production (

3. OECD, 'Abuse of dominance in digital markets' abuse-of-dominance-in-digital-markets-2020.pdf (

4. Competition & Markets Authority (United Kingdom), 'Online Platforms and Digital Advertising Market Study Final Report' (1 July 2020).

5. Digital News Publishers Association v. Alphabet Inc. and Others, Case No. 41 of 2021.

6. The Indian Newspaper Society v. Alphabet Inc. and Others, Case No. 10 of 2022; News Broadcasters & Digital Association v. Alphabet Inc. and Others, Case No. 36 of 2022.

7. European Commission, 'Antitrust: Commission sends Statement of Objections to Google over abusive practices in online advertising technology' Commission sends Statement of Objections to Google (

8. Australian Competition and Consumer Commission, 'Digital platforms inquiry - final report' Digital platforms inquiry - final report | ACCC.

9. 'CMA investigates Google and Meta over ad tech concerns' CMA investigates Google and Meta over ad tech concerns - GOV.UK (

10. Autorité de la concurrence, Decision 20-MC-01 (9 April 2020) Decision 20-MC-01 of April 09, 2020 | Autorité de la concurrence (

11. 'Competition Bureau obtains court order to advance an investigation of Google' Competition Bureau obtains court order to advance an investigation of Google -

12. OECD, 'Competition Issues concerning News Media and Digital Platforms' Competition issues concerning news media and digital platforms (

13. Google LLC v. Competition Commission of India, 2023 SCC OnLine NCLAT 147, para 66.

14. Indian National Shipowners' Association (INSA) v. Oil and Natural Gas Corporation Limited (ONGC), Case No. 01 of 2018 (02 August 2019).

15. Google, 'How Google Works with the News Ecosystem'

16. Vijay Gopal v. Big Tree Entertainment Pvt. Ltd. (Bookmyshow) And Others, Case No. 46 of 2021 (16 June 2022).

17. Ministry of Corporate Affairs, Standing Committee on Finance, 'Anti-Competitive Practices by Big Tech Companies' (53rd report, December 2022).

18. Treasury Laws Amendment (News Media And Digital Platforms Mandatory Bargaining Code) Act 20(Australia).

19. CNBC, 'Australia Passes New Media Law That Will Require Google, Facebook To Pay For News' Australia Passes News Media Law That Requires Google, Facebook To Pay (Cnbc.Com).

20. An Act respecting online communications platforms that make news content available to persons in Canada ('Online News Act'), C-18 (Canada).

21. Autorité de la concurrence, Decision 21-D-17 (12 July 2021) Decision 21-D-17 of July 12, 2021 | Autorité de la concurrence ( (France).

22. 'Centre working on law to protect Indian media from Big Tech: Rajeev Chandrasekhar' Centre working on law to protect Indian media from Big Tech: Rajeev Chandrasekhar - India Today.

23. Reuters, 'Alphabet to reopen Google News in Spain after govt amends rules'

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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