ANTITRUST REGULATORS ALARMING BIG TECHS IN JAPAN, US AND AUSTRALIA - The Daily Guardian
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ANTITRUST REGULATORS ALARMING BIG TECHS IN JAPAN, US AND AUSTRALIA

Sanyam Juneja

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INTRODUCTION

The authorities now be steering the big tech companies under new guidelines and regulations to reinforce the anti-monopoly boundaries on such giants in order to maintain uniformity in the market. Now, under these new rules and regulations, the core focus will be on the economic and digital platform for not engaging in any of the monopolistic practices that may obstacle competition in the market. The new-fangled rules and regulation will now be putting regulatory and political pressure in such big techs for not engaging in any unlawful practices that may hurdle the competition in the market. The utmost provisions falling within the domain of these rules and regulations is to keep an eye check on these tech giants in not sharing or producing any insensitive or illegal content that may create any impairment within the consumer at large.

POSITION IN JAPAN

The National Diet of Japan has legislated an Act- ‘Improvement of Transparency and Fairness in Trading on Specified Digital Platforms’ which is yet to be implemented by the Japanese authority, may be by the spring season of the existent year i.e. 2021. The foremost object of this Act would be to keep an eye check and tapping supervisory and political compression especially on the Specified Digital Platform Providers in order to encourage the impartiality and clearness in the mechanism of such companies. Now, it has not been decided yet that who will be the companies instituting under these specific digital platforms, but once executed, then would be surely designated by the Ministry of Economic, Trade and Industry (METI), till the time authorities for sure drive a crisscross on GAFA- Google, Amazon, Facebook, Apple and also the domestic platforms like Yahoo! Japan. The Japan Fair Trade Commission (JFTC) will also be under operation in order to keep a check on the companies not engaging in any anti-competitive practices like- abusing its dominant position or indulging in any discriminating contracts and much more.

WHAT ARE THE KEY REGULATIONS UNDER THE JAPAN GUIDELINES?

The Act states that the Digital Platforms will be obligatory to perform its operations and actions without creating nay hindrances in the market. Some of the key takeaways that the Act lays down in regulating such big techs in order to maintain parity in the market are-

· The requirements enshrined under the Act has made an obligatory regime on the Digital Platforms to disclose the information to the third party sellers and consumers. The focal impression behind in undertaking so is to create a transparency and evenhandedness in the market so that these big tech giants should not participate in any unfair or unauthorized arrangements including refusal to deal.

· The gathering of data of third party sellers and consumers by these tech giants would now be under a perceptiveness, by commanding certain boundaries on such companies i.e. how the data is stored, for what purpose- illegal or unlawful, taking the consent would now be obligatory in order to evade any mistreatment.

· There would be reasonable procedures and schemes under the new strategies. The companies incoming into any deal or proposed transaction are bound to notify for the same to the METI and also those companies if they are not designated but falling within the ambit of such criteria would also be mandatorily submitting the report of its compliance and self-assessment to the ministry.

· The METI has given a control to the JFTC to initiate the proceedings on its own if it thinks that any transaction or performance by these big techs is hovering any antitrust scrutiny in the market for example if any company is exploiting its dominant position in the market or entering into any unlawful contracts or arrangements which are creating nay disturbance in the market.

Now, the companies failing to notify the report to the ministry would be spanked with a heaviness penalty that would be 1 million JPY and any untrue or fictitious information furnished by the big techs would be slapped with 5,00,000 JPY penalty under these guiding principles.

POSITION IN UNITED STATES

The US competition authority i.e. Federal Trade Commission will now be knocking the political and supervisory pressure on the big tech giants- “FAANG” for their regular Anti-Competitive conduct and unfair business practices seen over the past years till date. Now, the antitrust committee will put an eye on such big tech companies and safeguard the uniformity in the market so that the slighter companies could compete justly, thus encouraging the impartial competition in the market.

The one of the most significant initiative taken by the US Parliament is to revoke the section 230 of the Communications Decency Act which was in the favor of these big tech giants. The section states that it provides the protection to these big tech giants against any legal liability for using the user’s content.

But now under the new-fangled regulation, the authority has commanded that the section 230 should be immediately revoked thus backing the big techs and creating a more commanding and political pressure on such companies.

MERGER REGIME

Under the new guidelines, the big tech companies or the companies with giant market share or dominant in nature would be obligatory to notify each and every transaction to the commission that it is for the public wellbeing, and, if not, then would be presumed to be anti-competitive in nature. The leading platforms are bound to notify every transaction for all the deals irrespective of meeting the regulatory thresholds.

IMPOSITION OF FINE

The new rules and regulations have given power to Department of Justice and Federal Trade Commission to impose fine upto 15% of a company’s annual revenue if such companies violates antitrust rules.

JUDICIAL ANNOUNCEMENTS

❖ Department has filed a suit against Google for violating provisions of Sherman Act

The US- DOJ along with other departments has filed a civil complaint against Google for engaging into anti-competitive practices in search and advertising sector- exclusive distributions, tying in arrangements, entering into elongated agreements with Apple, providing favored treatment to its own gear- thus violating the provisions of the Sherman Act. It is also been alleged that Google being a dominant position in the market is abusing its powers engaging in exclusionary practices in search and advertising market. The commission has said that the Google, if proven, for breaching such antitrust regulations would be slapped with a hefty fine that would be three times more than it imposed by the EU regulators.

❖ Epic-Apple battle still going on

Epic Games has filed an antitrust suit in the United States District Court against Apple for abusing its dominant position in the market by compelling developers to use Apple’s in-app payment systems – which charge commissions of up to 30% from its app developers and giving privileged handling to its own applications. The EU regulators have also opened an investigation against Apple for the same grievance filed by the Spotify and e-books. If proven, Apple would be imposed with the bulky penalty for engaging in such a demeanor in the market.

AUSTRALIA’S MOVE

The Australian Government has also issued certain guidelines and parameters for knocking a supervisory pressure on the big tech companies especially Facebook and Google for engaging in abusing their dominant power in the media and digital segment. The new-fangled regulations will now be focusing especially on the news media and digital bargaining code i.e. as it has been gotten by the authorities in the past years that both the companies have massive market share in advertising the news and media on their platforms. The study says for every $100 spent on online advertising, Google captures $53, Facebook takes $28 and rest is shared with the other platforms. As it is now crystal clear that such giants are in the dominant position and have been misusing their power by limiting blockades for the slighter companies and fresh entrants, so in order to eradicate such a concern and to make a fair play in the market, the Australian competition watchdog (Australian Competition and Consumer Commission) will be keeping an eye check on such big techs for not abusing their dominant position in the market.

The watchdog will be regulating the merger regime- the big techs entering into the proposed deals or transactions would be bound to report to the commission if it believes that such a transaction could diminish the competition in the market.

CASE LAW

· Battle between Google and Facebook with the Australian Government

The Australia’s Competition Watchdog has commenced an inquiry against Facebook and Google for impacting the competition in the news and media division by abusing their dominant position in the country. The commission has commanded the platforms to pay for the news content as social media platforms are the key source of sharing information, thus, these platforms are building an entry barrier and hindrance for the newspapers and publishing channels (small scale competitors) around the country.

Furthermore, the Google and Facebook earlier submitted that they will block the sharing of news from their platform in the country if the commission executes this proposed bill and Google will also remove the search engine for the country. But later on after too much of a contentious and debatable discussions, the Google has launched the new Showcase facility and has tied up with various small news channels by paying them for the news content. Now, the current scenario will be reviewed by the commission at least for 12 months and will take an appropriate action if any anti-competitive conduct arises in the future.

COMMENT

Imposing the lot of political pressure on such giants could launch a new era in the antitrust regulation in the tech sector. The authorities not only in these jurisdictions but across the globe have taken a welcoming footstep in regulating such techs for their unlawful behavior. If executed, then such giants would be fronting an extensive antitrust scrutiny by the authorities.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk

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The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.

The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.

The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.

The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.

The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.

respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.

The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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Nexus between accused’s negligence and victim’s death has to be established under Section 304A IPC: Supreme Court

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The Supreme Court in the case Nanjundappa vs State of Karnataka observed that would not apply to a criminal case, the doctrine of res ipsa loquitur stricto sensu.

when there is no report of a technical expert to corroborate the prosecution story as The Appellants therefore are entitled to be given the benefit of doubt furthermore It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions.

when such current passed through the Television set, it did not blast and melt the wiring of the entire house and the court further added that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact.

While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts as In case of circumstantial evidence, there is a risk of jumping to conclusions in haste However the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced, in the present case. The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

The court noted that there is no eye witness to say conclusively that the Appellants were in fact executing the work at the place alleged and further the court notice that no report or even inspection was conducted by a technical expert to assess the veracity of the averments made by the complainants to suggest that it was due to the alleged acts of the Appellants that the incident took place. the allegations against the Appellants are highly technical in nature, notice by the court on perusing the evidence on record.

On 21th November 2003 at 1.00p.m. the deceased was watching TV in his house. Noticing a sudden sound in the TV, the deceased got up to separate the dish wire, the TV connection wire and the telephone wire, which were entwined together, he felt an electric shock and his right hand was burnt and as a result of this shock he succumbed to death at that point of time it was found that the said incident took place because of the negligent act on the part of the accused, the supervisor (an employee in the telephone department ) and daily wage worker employed by him, as it was found out in the investigation. under Section 304A read with Section 34 IPC was upheld by the Karnataka High Court, the appellant is convicted.

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed under Section 304A of Indian Penal Code for causing death by negligence, while acquitting two persons that prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim, for bringing home the guilt of the accused.

The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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