MEMORIAL FOR APPELLANT TEAM CODE: B

Before

The Honb’le Supreme Court of Indusland

(Under Article 132 of the Constitution and Section 53T of the Competition Commission
Act, 2002)

Between

Competition Comission of Indusland (CCI)……………………………. Appellant

v.

Artbook India Pvt. Ltd. & Ors.……… ……………… ………………….Respondent

1
Memorial for Appellant
 TABLE OF CONTENTS

Contents
I. TABLE OF ABBREVEATIONS .............................................................................. 3
II. INDEX OF AUTHORITIES ...................................................................................... 4
III. STATEMENT OF JURISDICTION .......................................................................... 5
IV. STATEMENT OF FACTS………………………………………………………….6
V. STATEMENT OF ISSUES ....................................................................................... 8
VI. SUMMARY OF ARGUMENTS ............................................................................... 9
VII. ARGUMENTS ADVANCED ................................................................................. 11
VIII. PRAYER .................................................................................................................. 26

2
Memorial for Appellant
 TABLE OF ABBREVIATIONS

¶ Paragraph

§ Section

& And

A.C. Appeal Cases

Anr. Another

Art. Article

Appreciable Adverse Effect on Trade related

AAEC
Competition

S.C. Supreme Court

S.C.R. Supreme Court Reports

v. Versus

pp. Pages

p Page

MeiTY Ministry of Electronics and Information Technology

3
Memorial for Appellant
 INDEX OF AUTHORITIES

CASES: -

1. Competition Commission of India v. Bharti Airtel

2. Harshita Chawla v. Whatsapp Inc. & Facebook Inc
3. Vinod Kumar Gupta v. WhatsApp inc
4. K.S Puttaswamy v. Union of India
5. Tribhuvan v. Facebook India Online Services Pvt. Ltd
6. Excel Crop Care Limited v. Competition Commission of India and Another
7. Shrem Infraventure Private Limited v CCI
8. Adani Transmission Limited v CCI
9. Hindustan Colas Private Limited v CCI
10. Etihad Airways PJSC v CCI
11. Panther Fincap and Management Services Ltd. v Union of India

FOREIGN CASES

1. German Federal Cartel Office Vs. Facebook

STATUTES

1. Competition Act, 2002

2. Consumer Protection Act, 2019
3. Information Technology Act, 2000

WEBSITES

1. https://www.mondaq.com/india/advertising-marketing--branding/1203982/guidelines-for-prevention-
of-misleading-advertisements-and-endorsements-for-misleading-advertisements-2022--part-1
2. https://elplaw.in/guidelines-on-misleading-advertisements-in-india/
3. https://www.scconline.com/blog/post/2022/07/12/dcdrc-directs-facebook-to-run-online-scam-
related-awareness-advertisements-on-various-media-platforms-in-order-to-neutralize-the-effect-of-
misleading-ads-on-its-page/
4. https://competitionlawblog.kluwercompetitionlaw.com/2021/02/11/the-german-facebook-antitrust-
case-a-legal-opera/
5. https://www.competitionlawyer.in/whatsapps-new-data-privacy-policy-how-it-affects-competition/

4
Memorial for Appellant
 STATEMENT OF JURISDICTION

The council has the honour to appeal before the Honb’le Supreme Court of Indusland under Article 132 of
Constitution of Indusland read with Section 53T of the Competition Act, 2002 of Indusland.

Article 132 in the Constitution of Indusalnd, 1949 states that

“132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases

( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the
territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article
134A that the case involves a substantial question of law as the interpretation of this Constitution

(2) Omitted

(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground
that any such question as aforesaid has been wrongly decided Explanation For the purposes of this article,
the expression final order includes an order declaring an issue which, if decided in favour of the appellant,
would be sufficient for the final disposal of the case.”

AND

Section 53T in the Competition Act, 2002

“53T Appeal to Supreme Court. —The Central Government or any State Government or the Commission or
any statutory authority or any local authority or any enterprise or any person aggrieved by any decision or
order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of
communication of the decision or order of the Appellate Tribunal to them: Provided that the Supreme Court
may, if it is satisfied that the applicant was prevented by sufficient cause from filing the appeal within the said
period, allow it to be filed after the expiry of the said period of sixty days.”

5
Memorial for Appellant
 STATEMENT OF FACTS

1. The sovereign Republic of Indusland is a developing country, whose laws are pari materia with the
laws of India. The Indusland Competition Act (ICA) and Regulations made thereunder are the primary
laws governing competition law, which seek to, inter alia, ensure fair play and competition in the
economy and prevent activities which have appreciable adverse effect on competition. The government
has established the Competition Commission of Indusland (CCI) as the statutory authority for
enforcement of the ICA. All the judgments passed by the Indian Courts enjoy a precedential value in
the courts in Indusland. The CCI relies on established competition law precedents in the European
Union and the USA also.
2. Artbook India Private Limited, is a company incorporated in India and owns a product namely
Artbook. It is an online social media and social networking site which connects people via an online
platform by sharing content like text status, posts, images, videos, and external links like blog posts.
PromptApp India Private Limited, is a company incorporated in India and owns a product namely
PromptApp which is an internationally available freeware, which allows users to send text and voice
messages, make voice and video calls, share images, documents and other content. Both can be used
on phone through downloaded app and on computer.
3. Artbook has reasonably large market share and is one of the largest social media networks in the world
with 21% population registered as active users. There are several other market players providing same
or similar services. However, it has a set of loyal customers as problems and website downtime has
not deterred the vast user base of Artbook, the presence of other messaging apps like Picchat, etc.
4. Artbook decided to acquire controlling share in PromptApp. In pursuance of the same a Share Purchase
Agreement (SPA) was entered into by and between the two. The notice of combination was given to
CCI within 30 days of the execution of SPA. SPA provided certain terms and conditions subject to
which PromptApp was to conducts its business operations from the date of execution SPA till the date
of approval and certain acts for which prior approval of Artbook was required. Further in pursuant to
SPA; updated its privacy policy and terms of service for its users. The new policy made it mandatory
for the users to accept the terms and conditions in order to retain their account information and
provided as to how it will share personalised user information with PromptApp. Due to the new privacy
policy the competing apps, witnessed a surge in downloads but that did not result in significant loss of
users for Artbook.

6
Memorial for Appellant
 5. CCI in exercise of its powers took suo moto cognisance of the matter as it was of the view that both
are in a dominant position and are misusing the same. The CCI observed that the acts of both are
pursuant to the terms of SPA amounted to consummating the combination even before giving notice
of such combination and before the approval by CCI. Hence imposed penalty on Artbook. Further the
focus area was the mandatory term of usage introduced by Artbook that required potential users to
allow PromptApp to collect and use their data in order to retain their account information on Artbook.
CCI observed that the new privacy policy mandated users to agree with the terms of service and privacy
policy and allowed Artbook to share information of its users with PromptApp.
6. Further CCI observed that more data PromptApp collected, the more capable it became of customizing
its services based on individual choices and preferences. This would help it to improvise the service
and retain its customers and maintain dominance. Artbook was also found indulging in circulation of
false information. CCI took cognisance to look into the extent of impact that the fake news spread can
have.
7. The defence that was raised by Artbook was that matters pertaining to personal data and information
would not per se constitute competition law issues and would primarily belong in the domain of data
protection laws unless specific impact on competition is established. The CCI was of the view that
both would indulge in data pooling and would manipulate the choices of users by collecting and sharing
pool of data, which would make it difficult for the users to exit such apps and hence, the aforesaid apps
will be able to retain their position which would create entry barriers. CCI concluded that both enjoy
dominant position and due to the privacy policy introduced after SPA; competition will be stifled. It
held that fake news and confirmation bias created by misuse of data by Artbook had AAEC. CCI
imposed a penalty of Rs.100 crores on Artbook.
8. An appeal was preferred against the order of CCI to the Appellate Tribunal, to set aside the observation
of CCI holding that there was part consummation of combination without giving notice to CCI, that
they abused their dominant position and that data pooling by both will result in manipulation of user
behaviour and have AAEC in the context of digital economy and online data protection. Further appeal
was made against the order of the CCI wherein it held that the said issues were within the ambit of
data protection law and not competition law.
9. In appeal the Appellate Tribunal set aside the order of CCI. An appeal has been preferred by CCI
against the aforesaid order of the Appellate Tribunal before the Hon’ble Supreme Court of Indusland.

7
Memorial for Appellant
 STATEMENT OF ISSUES

1. Whether the acts of the Artbook India Private Limited amount to Gun-Jumping?
2. Whether Artbook by spreading fake news and issuance of biased advertisements is
creating confirmation bias which can have adverse effects on the competition?
2.1.Whether acts of the companies amount to unfair trade practices affecting the
consumer welfare?
3. Whether Artbook is abusing the dominant position in relevant market?
3.1.Whether the privacy policy of Artbook is likely to stifle competition?
4. Whether pooling of data by PromptApp and Artbook have any effect on the competition
in the context of digital economy and online data protection?
4.1.Whether the issue of misuse of sensitive data and information is within the ambit of
data protection law or is an issue which can be dealt with and is covered under the
competition law?

8
Memorial for Appellant
 SUMMARY OF ARGUMENTS

ISSUE 1: Whether artbook is abusing the dominant position in relevant market?

Artbook is liable for abuse of dominant position of Artbook in the relevant market by being in dominant
position according to the provisions of Section 19(4) of Competition Act and then abusing this position
according to Section 4 of Competition Act.

ISSUE 1.1. Whether the privacy policy of Artbook is likely to stifle the competition?

That, due to the dominant position as acquired by both, the Artbook and PromptApp together, it gives them
an edge in the instant messaging services market as they own large amount of users personal data which in
turn leads them to better customize their ads which ensures its user retention therefore stifling the competition,
for which they are not even seeking the permission of the data owners and thereby abusing the dominant
position.

ISSUE 2: Whether pooling of data by PromptApp and Artbook have any effect on the competition in
the context of digital economy and online data protection?

In digital markets differential access to data, by the market participants who have control over the relevant
market can undermine competition ‘on the merits’. The result is that consumers will have less choice. In the
present case, because Artbook and PromptApp have dominance in the market they are posing risk to the
consumers by processing massive amount of personal data and restricting the competition and undermining
the choice thereby, effecting the competition because of data pooling.

ISSUE 2.1. Whether the issue of misuse of sensitive data and information is within the ambit of data
protection law or is an issue which can be dealt with and is covered under the competition law?

That, there are synergies between competition and data protection objectives, and many regulatory
interventions in digital markets can be designed in a way that supports both objectives. However, merely
because the material on the basis of which investigation is being undertaken is identical to the material which
is subject matter of investigation by the other authority it cannot be stated that both the authorities cannot
simultaneously investigate pursuant to power conferred on them under their respective statutes. And for this
reason, alongside above reasons misuse of sensitive data and information is within the ambit of competition
law from the perspective of competition concerns

9
Memorial for Appellant
ISSUE 3: Whether the acts of the Artbook India Private Limited amount to gun-jumping?

The acts of Artbook and PromptApp amounts to gun- jumping as they have already implemented certain
provisions of their Share Purchase Agreement. Hence, the above acts of Artbook amount to Gun-jumping as
per Section 6 of the Competition Act, 2002.

ISSUE 4: Whether Artbook by spreading fake news and issuance of biased advertisements is creating
confirmation bias which can have adverse effect on the competition?

The purpose of Artbook is to retain its users and to dominate the market, these fake advertisers know that
Artbook won’t be filtering the news and advertisements that they bring to the doorstep of Artbook. And it
being in dominant position is having adverse effect on competition according to section 19(3) of competition
act.

ISSUE 4.1. Whether acts of the companies amount to unfair trade practices affecting the consumer
welfare?

Practices or acts of Artbook and PromptApp, constituting data collection and data sharing, misusing the same,
acquiring another firm in order to create entry barriers, abusing one’s dominant position, constitute unfair
trade practices that not only stifle the competition but moreover and importantly, affect the welfare of
consumers

10
Memorial for Appellant
 ARGUMENTS ADVANCED

ISSUE 1: WHETHER ARTBOOK IS ABUSING THE DOMINANT POSITON IN RELEVANT

MARKET?

1. In regards to relevant product market, Artbook is an online social media and social networking site
which connects people through an online platform by sharing content like text status, posts, images,
videos, and external links like blog posts. It has reasonably large market share and is one of the largest
social media networks in the world with 21% population registered as active users. There are several
other market players providing same or similar services. However, it has a set of loyal customers as
problems and website downtime has not deterred the vast user base from returning to Artbook. That,
PromptApp is an internationally available freeware, which allows users to send text and voice
messages, make voice and video calls, share images, documents and other content which has been
acquired by Artbook which shows that, now the enterprise has huge amount of market share thereby
indicating its dominant position according to Section 19(4)(a)1.
2. That, Section 2(r) of Competition Act, 20022, defines ‘relevant market’ as:

“The market which may be determined by the Commission with reference to the ‘relevant product
market’ or the ‘relevant geographic market’ or with reference to both the markets.”

Therefore, in regards, to relevant product market, both Artbook and PromptApp can be used on phone
through downloaded app and on computer. These instant communication applications are internet
based and provide additional functionalities to the users. For example, users of communication apps
can see when their contacts are online, when they are typing or when they last accessed the application.
Further, instant communication apps can be used through smartphones. These applications are free to
download communication application which does not charge any fees from its users for providing
services and just uses internet connection on the device to send instant messages, connect voice mails,
etc. These instant communication applications typically require you and your contacts to be on same
communication application platform. Thus, the relevant product market in this case may be considered
as ‘the market for ‘internet based instant messaging services.’

1
“Section 19 in the Competition Act, 2002,”available at: https://indiankanoon.org/doc/702674/ (last visited March 22, 2023).
2
“Section 2(r) in the Competition Act, 2002,”available at: https://indiankanoon.org/doc/594114/ (last visited March 22, 2023).
11
Memorial for Appellant
 With regard to relevant geographic market, consumers are free to install any application they want as
the geographic scope for either demand or supply is not limited to any particular area. 3 Even though,
developers distribute similar products to all their customers regardless of their geographic location,
however in the present matter, we are dealing with alleged anti-competitive conduct of Artbook within
the geographical boundary of Indusland. Hence, the relevant geographic market for instant messaging
services should be considered as Indusland.
3. That, a key element of market dominance test is strong direct network effects of Artbook’s business
model and difficulties associated with switching to another social network. Artbook is the second most
widely used application for social messaging after PromptApp. Since, Artbook has acquired
PromptApp, they do not seem to be constrained by each other, and rather they add on to their combined
strength as a group, reflecting their edge over other users in the market. Additionally, given its
popularity and wide usage, for one-to-one as well as group communications and its distinct and unique
features, Artbook has seemed to gain dominance in the relevant product market. Therefore, if we go
through the definition of ‘dominant position’ in Section 4 in clause (a) sub-clause (ii) of the
Competition Act, which states that any enterprise in relevant market affects it consumers in its favour
is in dominant position.
4. That, it can be established through this that Artbook is dominant in the market. Artbook by collecting
unreasonable amount of data and by sharing this data for advertising-funded service increases the
barriers to market entry and also has exploitative as well as exclusionary effect on consumers and
competitors respectively. The same has been held in the case of Competition Commission of India v.
Bharti Airtel4. Therefore, Artbook is thereby denying market access to competitors which indicates
that it is abusing it dominant position according to Section 4(2)(c). Further, given the pronounced
network effects it enjoys, and the absence of any credible competitor in the Indusland, Artbook appears
to be in a position to compromise quality in terms of protection of individualised data as new policy
has made it mandatory for users to accept the terms and conditions in order to retain their account
information and also stated that it will share its personalised user-information with PrompApp. Despite
this introduction of new policy the Artbook did not face any significant loss of its user.
5. Further, the network effect in turn endures that customers do not switch to other platforms easily unless
there is a new competitor entering the market with an altogether disruptive technology. With regards
to the barriers to entry, they may arise indirectly as a result of the networks effects enjoyed by the
dominant player in the market, that is, Artbook, in the present case. Since, network effects lead to
increased switching costs, new players may be dis-incentivized from entering the market. Also, users
find it difficult and meaningless to switch to another platform until all or most of their social contacts
switch to the other platform. Users wishing to switch would have to convince their contacts to switch

3
Harshita Chawla v. Whatsapp Inc. & Facebook Inc., 2021 SCC OnLine NCLAT 3803
4
(2019) 2 SCC 521
12
Memorial for Appellant
 and these contacts would have to persuade their contacts to switch.5 Thus, while it may be technically
feasible to switch, no user is willing to go through this tedious process. This clearly shows that the
users are dependent upon the enterprise which further assures its dominant position according to
Section 19(4)(f) of Competition Act.
6. Hence, the abovementioned factors clearly establish the abuse of dominant position of Artbook in the
relevant market by being in dominant position according to the provisions of Section 19(4) of
Competition Act and then abusing this position according to Section 4 of Competition Act.

ISSUE 1.1. WHETHER THE PRIVACY POLICY OF ARTBOOK IS LIKELY TO STIFLE THE
COMPETITION?

1. That, it is established above, that Artbook has its dominance in the relevant market. Given its
dominant position, it has now started abusing its position in the relevant market by introducing
privacy policy which compels its users to share their account details and other information with
PromptApp. It has mandated the acceptance of the privacy policy for its users due to which the
users does not have a choice to opt out of this policy. Thus, users are required to accept the
unilaterally dictated take-it-or-leave-it terms by a dominant messaging platform in their entirety,
including the data sharing provisions therein, if they wish to avail their service. Such “consent”
cannot signify voluntary agreement to all the specific processing or use of personalize data, as
provided in the policy.6 Users have not been provided with appropriate granular choice, neither
upfront nor in fine prints, to object to or opt-out specific data sharing terms, which prima facie
appears to be unfair and unreasonable for Artbook and PromptApp users.
2. On a careful and thoughtful consideration of the matter, the conduct of Artbook in sharing of users'
personalised data with PromptApp, in a manner that is neither fully transparent nor based on
voluntary and specific user consent, appears prima facie unfair to users. The purpose of such
sharing appears to be beyond users reasonable and legitimate expectations regarding quality,
security and other relevant aspects of the service for which they register on Artbook. On of the
stated purposes of data sharing viz. Targeted ad offerings rather indicates the intended use being
that of building user profiles through cross-linking of data collected across services. Such data
concentration may itself raise competition concerns where it is perceived as a competitive
advantage.7 The impugned conduct of data-sharing by Artbook with PromptApp apparently
amounts to degradation of non-price parameters of competition viz. quality which result in

5
LAKSHANA R “Vol.4-ABUSE-OF-DOMINANCE-BY-FACEBOOK-THROUGH-USER-DATA-EXPLOITTION-MYTH-OR-REALITY.pdf,.”
6
Federal Trade Commission v Facebook Inc. (Case No.: 1:20-cv-03590-JEB)
7
Vikas Kathuria and Jessica C. Lai, “The Case of Google ‘Snippets’: An IP Wrong that Competition Law Cannot Fix” SSRN
Electronic Journal (2020).
13
Memorial for Appellant
 objective detriment to consumers, without any acceptable justification. Such conduct prima facie
amounts to imposition of unfair terms and conditions upon the users of Artbook messaging app, in
violation of the provisions of Section 4(2)(a)(i) of the Act.
3. That, both Artbook and PromptApp has their own reasonably large market share and are the two
largest social media network having more than 21% population registered as active users. That is
why it becomes undisputable that Artbook occupies a dominant position in relevant product market
which renders its users incapable of shifting to another platform despite dissatisfaction with the
product. This ensures large retention of its user base and to prevent any other disruptive technology
from entering the market, data is utilized by tech companies to customize and personalize their
own platform so that their user base remains hooked.8 When data concentration is seen through
this prism it raises competition concerns because it prima facie amount to imposition of unfair
terms and conditions upon its users thereby violating Section 4(2)(a)(i) of the Act.
4. That, in addition to its own direct data collection, Artbook accumulates and processes the personal
data of PromptApp, for the purposes of consumer profiling that allows for targeted ads, inter alia,
which in turn has the potential to undermine competitive process and create further barrier to
market entry in stark violation of Section 4(2)(c) and (e) of the Act.
5. That, due to the dominant position as acquired by both, the Artbook and PromptApp together, it
gives them an edge in the instant messaging services market as they own large amount of users
personal data which in turn leads them to better customize their ads which ensures its user retention
therefore stifling the competition, for which they are not even seeking the permission of the data
owners and thereby abusing the dominant position.

8
Ashok Kumar Gupta, “SHAPING COMPETITION REGIME IN THE ERA OF DIGITISATION ADMINISTRATIVE STAFF COLLEGE OF
INDIA PUBLIC LECTURE MARCH 21, 2022.”
14
Memorial for Appellant
ISSUE 2: WHETHER POOLING OF DATA BY PROMPTAPP AND ARTBOOK HAVE ANY
EFFECT ON THE COMPETITION IN THE CONTEXT OF DIGITAL ECONOMY AND ONLINE
DATA PROTECTION?

1. That, users of social media platforms, or consumer communication platforms tend to be where the
crowd is. Regardless of any new and valuable feature that a fledgling platform might have, users would
like to be on the one, which has their friends and family. This is known as direct network externality,
which erects an intrinsic entry barrier not easy to surmount9
2. That, both PromptApp and Artbook, as established is together a dominant player in the instant
messaging services market. The opportunities for monitoring and profiling user information and
behaviour are thereby enhanced because of the large amount of consumer data that the two firms have
together. Customers/Users are effectively locked into the services that they together provide.
Moreover, because of the dominance, power and control of the Artbook and PromptApp in the relevant
market, the incentives for the potential competitors to enter the market are diminished as they are
unable to attract a critical mass of users. This is because, advertisers would list their product on
platforms, which have power over the market. Further, because of advertisers going one platform, the
users of this digital platform will extract benefit from this platform only, in the present case which is
Artbook and PromptApp, therefore, making it exceptionally difficult for a new player to enter, survive
and grow. Thus, network effects can make platform markets ‘tip’ towards being concentrated,
potentially even to monopoly.
3. That, what further helps consolidate the incumbents’ market position in digital markets is the scale
advantage that is derived from user data. Data plays a central role in online markets. Value creation on
online platforms is reinforced through data capture and data deployment feedback loop. The data
advantage of market leaders, which/who have amassed wealth of personal data over a period of time,
overshadows the offerings of newer platforms in terms of quality and data-fed personalisation.10
Thereby, it can be deduced that the control of personal information contributes to market power in the
digital economy and hence implications for data protection plays an important role for competition as
gathering information about the users help them gain a competitive advantage in the relevant market.
4. That, Artbook and PromptApp typically provide what we call as comprehensive personal “Virtual
Space.” This virtual space includes a detailed personal profile of the users, having information like,
their place of residence, marital status, vocational qualifications, occupation and hobbies, interests and

9
“The German Facebook Antitrust Case - A Legal Opera,” Kluwer Competition Law Blog, 2021available at:
https://competitionlawblog.kluwercompetitionlaw.com/2021/02/11/the-german-facebook-antitrust-case-a-legal-opera/ (last
visited March 21, 2023).
10
Ibid.
15
Memorial for Appellant
 political views. A users’ virtual identity is supposed to be a reflection of their real life, thus constituting
an “online identity.” For this reason, the user’s true identity can often be deduced from his or her social
network profile, which at least gives enough details for Artbook and PromptApp to imagine what the
personality of the actual person behind the online profile is like.
5. That, data collection by Artbook and PromptApp which are acting as gatekeeper firms, lead to creation
of super- profile of consumers as they can control, track and link consumer behaviours across platforms,
online services and websites. This helps in real-time targeted advertising at the level of each individual
consumer and enables personalised pricing.11 The ability to gather data on individual consumers,
process it algorithmically, and set prices automatically may help develop and spread price
discrimination strategies. Further, with their control over user data these gatekeepers are in unique
position to shape and influence consumer choices on the one hand, and steer consumer traffic to the
businesses on the other.12 Users are data subjects, whose welfare is at risk where their freedom of
choice and control over their personal information is restricted by a dominant entity. Therefore, the
excessive data collection and the extent to which such collected data by Artbook and PromptApp gives
rise to competition concerns as even small actions by these platforms may affect its competitors as it
may exclude and marginalise rivals.
6. That, data probability makes it easier for consumers to switch between providers, and for new
providers to offer tailored products or services based on prior information. In digital markets
differential access to data, by the market participants who have control over the relevant market can
undermine competition ‘on the merits’. The result is that consumers will have less choice. 13 In the
present case, because Artbook and PromptApp have dominance in the market they are posing risk to
the consumers by processing massive amount of personal data and restricting the competition and
undermining the choice thereby, effecting the competition because of data pooling.

11
Wolfgang Kerber, “Digital markets, data, and privacy: Competition law, consumer law, and data protection.”
12
Ashok Kumar Gupta, “SHAPING COMPETITION REGIME IN THE ERA OF DIGITISATION ADMINISTRATIVE STAFF COLLEGE OF
INDIA PUBLIC LECTURE MARCH 21, 2022.”
13
M. M. Sharma, “WhatsApp’s New Data Privacy Policy-How it affects competition? |,” 2021 available at:
https://www.competitionlawyer.in/whatsapps-new-data-privacy-policy-how-it-affects-competition/ (last visited March 22,
2023).
16
Memorial for Appellant
ISSUE 2.1: WHETHER THE ISSUE OF MISUSE OF SENSITIVE DATA AND INFORMATION IS
WITHIN THE AMBIT OF DATA PROTECTION LAW OR IS AN ISSUE WHICH CAN BE DEALT
WITH AND IS COVERED UNDER THE COMPETITION LAW?

1. That section 18 of Competition Act, 2002 deals with duties of commission. According to this it
becomes the duty of CCI to protect the interest of the consumers which in this case is the users. The
reason it becomes an issue coming within the purview of Competition Act is because protection of
person data comes within the ambit of protection of consumer privacy.
It was held in the case of K.S. Puttaswamy v. Union of India14 that
“The growth and development of technology has created new instruments for the possible invasion of
privacy, including through surveillance, profiling and data collection and processing”
The above case clearly indicates that, the way or the method through which the data is being collected
and the privacy is being invaded, it is detrimental to the interests of consumers as this data collection
is violating the autonomy of an individual. The reason being that the users don’t have any say as to the
way their data is being used. It is mandatory for the users to give permission Artbook to share their
information with PromptApp. Further, they are also not given the right to access, correct and delete
personal data records when the purpose for which it has been collected is fulfilled. Moreover, using
the meta-data related to the transaction, the location of the authentication can easily be traced using
the IP address, which impacts upon the privacy of the individual. Therefore, this automatically
becomes a duty of the CCI to protect the interests of consumers if this data is being misused for gaining
an edge in the competition.
Further, in the case of Excel Crop Care Limited v. Competition Commission of India and Another, the
court has analysed the objective behind the act of Competition Act that the ultimate goal of competition
policy is to enhance the consumer well-being. Additionally there is no data protection law enacted in
Indusland that would safeguard the interest the consumers, therefore, it becomes the duty of CCI to
protect the interest of users. Thereby in present case, the way Artbook and PromptAp are misusing
sensitive information and data of users it becomes a concern under competition act as it harming the
interests of the consumers by misusing the data.

2. That, CCI is examining the policy update from the perspective of competition lens in ascertaining as
to whether such policy updates have any competition concerns which are in violation of the provisions
of Section 4 of the Act. Further, the Commission is of the considered view that in a data driven
ecosystem, the competition law needs to examine whether the excessive data collection and the extent

14
Puttaswamy at para 585
17
Memorial for Appellant
 to which such collected data is subsequently put to use or otherwise shared, have anti-competitive
implications, which require anti-trust scrutiny.15 Hence, CCI is only concerned with data accumulation
that may result in exploitative and exclusionary competitive practices as well as the effect of data
sharing on market capture and competitors' offerings. It is trite to mention that the provisions of the
Act are in addition to and not in derogation of the provisions of any other law, as declared under
Section 62 of the Competition Act.
3. That, it is not that Competition Act has exclusive jurisdiction and that no other act can deal with the
issue of misuse of data and information. Rather, Competition act and other Act will exercise their
jurisdiction in their respective fields. This reliance has been placed on Panther Fincap and
Management Services Ltd. v Union of India16, and the following paragraph of the Bombay High Court
judgement has been cited:
“33. I have considered these rival submissions of the parties and I am of the opinion that the
jurisdiction and the power of the various investigating authorities derived from the jurisdiction
vested in them by the various legislations or statutes, the authority which is doing the inquiry
and or conducting the investigation is required to carry out investigation keeping in mind the
legal provisions and legal limitations which are stipulated under the respective statute.
Undoubtedly it can be that there may be an overlapping investigation but in my opinion such
an eventuality cannot prevent any investigating authority from carrying out investigation in
respect of their jurisdiction conferred on them under the statute. I am further of the opinion
that merely because the material on the basis of which investigation is being undertaken is
identical to the material which is subject matter of investigation by the other authority it cannot
be stated that both the authorities cannot simultaneously investigate pursuant to power
conferred on them under their respective statutes. I am of the opinion that every authority is
entitled to investigate even may be in respect of the same material as well as from the angle
and facet in which they have been asked to carry out investigation. It is possible that the SEBI
may be investigating the same material on the ground of breach of the various provisions of
the SEBI act and other security related legislations whereas the central government,
department of company affairs can consider and/or investigate the fraud and/or breach of
various provisions of law in the light and context of the provisions of the companies act may
be in respect of the same material.

That, it can be interpreted from the above case that, various investigating authorities derive their power
from various statues due to which there may be an overlapping of statutes and investigation authorities.

15
“The role of competition in the digital economy,” UNCDF Policy Acceleratoravailable at:
https://policyaccelerator.uncdf.org/policy-tools/brief-competition (last visited March 22, 2023).
16
Panther Fincap and Management Services Ltd. v. Union of India, 2005 SCC OnLine Bom 1509
18
Memorial for Appellant
 However, this cannot prevent any investigation authority from carrying out their investigation.
Similarly, there is a possibility that the Competition act may overlap with any other act with regards
to issue of misuse of data and information, however the subject matter of investigation for both the
acts would be different. Further even if there is any inconsistency still competition act will have an
overriding effect as per section 60 of Competition Act, 2002.
4. That, there are synergies between competition and data protection objectives, and many regulatory
interventions in digital markets can be designed in a way that supports both objectives.17 However,
merely because the material on the basis of which investigation is being undertaken is identical to the
material which is subject matter of investigation by the other authority it cannot be stated that both the
authorities cannot simultaneously investigate pursuant to power conferred on them under their
respective statutes. And for this reason, alongside above reasons misuse of sensitive data and
information is within the ambit of competition law from the perspective of competition concerns

17
Competition and data protection in digital markets: a joint statement between the CMA and the ICO
https://awards.concurrences.com/IMG/pdf/joint_cma_ico_public_statement_-_final_v2_180521-
3.pdf?73366/a14cf0cf28e21db40ea00a3dd55937b92a2e048f
19
Memorial for Appellant
ISSUE 3: WHETHER THE ACTS OF THE ARTBOOK INDIA PRIVATE LIMITED AMOUNT TO
GUN-JUMPING?

1. That, Artbook is the dominant online social network in the world with 21% population registered as
active users. As established in the Issue 1, Artbook is also a dominant online social network in the
relevant product market of Indusland. Artbook has been successful in systematically tracking the
potential rivals and acquiring companies that it views to be serious competitive threats.
2. As per Section 6 (1) of the Competition Act, 2002,
“No person or enterprise shall enter into a combination which causes or is likely to cause an
appreciable adverse effect on competition within the relevant market in India and such a combination
shall be void.”
Artbook holds monopoly power in the market of instant messaging services in Indusland. Unable to
maintain its monopoly by fairly competing as well as being unable to maintain its dominance amid
changing conditions, Artbook addressed the existential threat by acquiring PromptApp. In pursuance
of the same a Share Purchase Agreement was entered into by and between the two companies. Artbook
supplemented this anticompetitive acquisition strategy with anticompetitive conditional dealing
policies, designed to erect or maintain entry barriers and thereby neutralizing perceived competitive
threats.18
3. That, further Section 6(2) of the Competition Act, 2002, requires parties to the combination to give
prior notice to CCI and the combination shall not come into effect for a period of 210 days. This
contemplates a standstill obligation on the parties not to give effect to their proposal of merger in whole
or in parts without the approval of the said authority under the Act.
In the case of Chhatwal Group Trust, Shrem Infraventure Private Limited and Shrem Roadways Private
Limited19, Adani Transmission Limited20 and Hindustan Colas Private Limited21, the court held that,
“The substantive issue involved is that of the conduct of the parties to a combination and not only that
of timing of conduct. Going by the arguments of the Acquirer, it would imply that parties, during the
stage of negotiations, may enter into cooperation on any commercial/financial/marketing aspects
leading to integration of their operations and yet claim that the conduct cannot amount to gun jumping,
as it occurred prior to the execution of definitive agreements or filing of notice. Hence, what is critical
in such cases is determination of the fact whether the alleged conduct is pursuant to the combination
and has the effect of consummating a part of a combination and not the timing of the same.”

18
Lexis Nexis “Gun-Jumping - Produced in partnership with Stéphane Dionnet and Pauline Giroux of
Skadden Arps Slate Meagher & Flom LLP”
19
Shrem Infraventure Private Limited, In re, 2018 SCC OnLine CCI 18
20
Adani Transmission Limited, In re, 2018 SCC OnLine CCI 28
21
Hindustan Colas Private Limited, In re, 2016 SCC OnLine CCI 144
20
Memorial for Appellant
 In pursuance of the Share Purchase Agreement, Artbook updated its privacy policy and terms of
service for its users. The new policy mandated to accept the terms and conditions in order to retain the
account information and additionally provided how it will be sharing personalised user information
with the PromptApp. This shows that before the approval of CCI, Artbook was sharing sensitive data
like account information of its users with PromptApp, which violates the criteria of Section 6(2) which
states that any person or enterprise will not come into effect without the permission of the CCI. The
parties to the transaction should limit their information sharing to the minimum extent before approval
from CCI.
4. That, test for substantial gun-jumping is to check whether the parties continue to compete as they were
competing before the formulation of the proposed combination or have ceased to do so, and
additionally to assess whether they are acting independently with regard to their ordinary business
activities. Here in the present case, Artbook amended its privacy policy by mandating upon the users
to accept their new privacy policy that allowed Artbook to share information of the users with
PromptApp which shows that they were not acting independently with regards to their ordinary
business activities, as they had already implemented certain part of their Share Purchase Agreement.

5. In Jet-Etihad case22, CCI had imposed penalty on Etihad under Section 43A of the Act as a clear
consequence of gun-jumping. Etihad before the transaction was approved by CCI had already
implemented certain provisions of Commercial Cooperation Agreement by sale of certain landing and
take-off slots at London Heatthrow Airport and had not notified CCI before consummation. For this
reason, CCI imposed penalty on Etihad for non-compliance of the Section.
Considering that in the present case as well, Artbook and PromptApp have already implemented
certain provisions of their Share Purchase Agreement. Hence, the above acts of Artbook amount to
Gun-jumping as per Section 6 of the Competition Act, 2002.

22
Etihad Airways PJSC, In re, 2013 SCC OnLine CCI 132
21
Memorial for Appellant
ISSUE 4: WHETHER ARTBOOK BY SPREADING FAKE NEWS AND ISSUANCE OF BIASED
ADVERTISEMENTS IS CREATING CONFIRMATION BIAS WHICH CAN HAVE ADVERSE
EFFECT ON THE COMPETITION?

1. That, as a dominant player with a gargantuan data pool, Artbook has the capacity to exploit the same
and manipulate market behaviour. This data pool can easily be misused by understanding the user
preferences and then manipulating the same through effective strategizing. This can be done by
applying the concept of “Confirmation Bias.” Confirmation Bias is propagated widely by social media
platforms that cause an adverse effect on the competition. Before we dwell into the concept of
Confirmation Bias, we would first discuss how the fake news is propagated.
2. That, Artbook owns a large user base and therefore has a large data pool at its feet. Now, what the
Artbook does is that it understands the individual preference of the users, by that it understands what
individual beliefs are and then it displays the information in accordance to their beliefs. This leads to
people feeling more strongly upon their viewpoints because their beliefs are confirmed through bias
news which Artbook is displaying. This mechanism would work on a large scale if the news source is
market player on whom people significantly rely upon for such information. The news source should
exercise sufficient market power that is capable of influencing market trends and consumer
behaviour.23 Artbook is a dominant player and its news venture has replaced the news portals to a great
extent.
3. That, Artbook, is able to retain its users because of confirmation Bias. Confirmation Bias is the
psychological tendency for people to embrace new information as affirming their pre-existing beliefs
and to ignore evidence that doesn’t. Unlike, real life situations where encountering of the dissenters is
unavoidable. Artbook allows its users to block, mute and unfriend any outlet or person that does not
bolster one’s current worldview. This leads to a situation where people get stuck in eco-chambers
hearing their own opinions and beliefs system being reinforced.24
4. That, due to large data pool of users’ artbook is able to manipulate the beliefs of individuals. Further
due to application of Confirmation Bias people tend to believe that the news and advertisements shown
by social media platforms is authentic as opposed to real news and advertisements. In the case of
Tribhuvan v. Facebook India Online Services Pvt. Ltd.25, the complainant was an active Facebook user.
He noticed on his Facebook-wall an advertisement offering shoes of Nike for rs. 599/-. As the

23
“Guidelines For Prevention Of Misleading Advertisements And Endorsements For Misleading Advertisements, 2022 – Part 1 -
Advertising, Marketing & Branding - India,”available at: https://www.mondaq.com/india/advertising-marketing--
branding/1203982/guidelines-for-prevention-of-misleading-advertisements-and-endorsements-for-misleading-advertisements-
2022--part-1 (last visited March 22, 2023).
24
“Guidelines on misleading advertisements in India | ELPLAW,” 2022available at: https://elplaw.in/guidelines-on-misleading-
advertisements-in-india/ (last visited March 22, 2023).
25
Tribhuvan v. Facebook India Online Services Pvt. Ltd., Complaint No. CC/117/2020
22
Memorial for Appellant
 advertisement was on Facebook, the complainant did not doubt its authenticity and immediately placed
the order for the shoes and paid the amount through his debit card. However, he did not receive the
product and realised that the advertisement was fake.26 The court directed Facebook to issue corrective
advertisement in order to neutralize the effect of misleading advertisement in order to safeguard and
protect the consumers from unscrupulous exploitation. 27
This indicates that, the users usually trust the advertisements even if they are fake, if they are displayed
by a dominant network effect and it signifies the amount of power these network effects hold on its
users and their thinking.
5. That, Section 19(3) gives us the factors for appreciable adverse effect. In that, Section 19(3)(a) includes
the factor od when a dominant enterprise creates barriers to new entrants in the market. In present case,
because of high level of market dominance of Artbook, it also creates barriers for existing and new
players in network effects. Even if a new player comes up with a new innovative product, it is unable
to compete with Artbook because of its unfair practices in order to retain its users. Further, Artbook
acts as gatekeeper for the flow of authentic information worldwide. Even though legitimate news
companies have authentic information it’s unable to spread that information because of lack of user
retention. Artbook’s goal is to keep its users engaged with content as long as possible even if the
content it is displaying is outrageous and fake.
6. That, this method of Artbook raises competition concerns because now, consumers tend to prefer more,
interesting, attention grabbing, simple to understand, fake news. This is now causing the market to
produce exactly the fake news that consumer, do wants which is not quality news. In other words,
competition pressure results in producing content that meets the demand of consumers who are not
28
interested in quality news. Further, this also acts advantageous for advertisers who are trying to
spread fake advertisements in the market. Since, the purpose of Artbook is to retain its users and to
dominate the market, these fake advertisers know that Artbook won’t be filtering the news and
advertisements that they bring to the doorstep of Artbook and Artbook will be publishing the same
without any hesitation till the purpose and objective of Artbook is being met, that is, its retention of its
users. Due to the lack of meaningful competition, there is no other player that kills the fake news and
identifies the real news, due to which the dominant player gets an edge and acquires the power to
manipulate and exploit the consumers and control their competitors.

26
“Unfair Trade Practices by Builders in India in the Era of Competition.pdf,.”
27
Tribhuvan v. Facebook India Online Services Pvt. Ltd., Complaint No. CC/117/2020
28
Editor_4, “DCDRC directs Facebook to run online scam related awareness advertisements on various media platforms in order
to neutralize the effect of misleading ads on its page” SCC Blog, 2022available at:
https://www.scconline.com/blog/post/2022/07/12/dcdrc-directs-facebook-to-run-online-scam-related-awareness-
advertisements-on-various-media-platforms-in-order-to-neutralize-the-effect-of-misleading-ads-on-its-page/ (last visited March
22, 2023).
23
Memorial for Appellant
ISSUE 4.1. WHETHER ACTS OF THE COMPANIES AMOUNT TO UNFAIR TRADE PRACTICES
AFFECTING THE CONSUMER WELFARE?

1. That, as per Section 2(47) of the Consumer Protection Act, 2019, Unfair Trade Practices is defined as
under:
"unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or
supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive
practice…”
An act is unfair when it meets certain criteria. That is: -
1.1.It causes or is likely to cause substantial injury to consumers;
1.2.It cannot be avoided by the consumers.

Further, an act is deceptive when it meets the following criteria: -

1.1.A representation, omission or practice misleading or is like to mislead the consumers.

2. That, further, Section 3 of the Competition Act, 2002 states that any agreement which causes or is likely
to cause an appreciable adverse effect on competition is deemed to be anti-competitive. The clause 1 of
section 3 of the act, further explicitly states that, the act prohibits any agreement with respect to
“production, supply, distribution, storage, and acquisition or control of goods or services which causes or
is likely to cause an appreciable adverse effect on competition within India.” Further, on a careful perusal
of Section 3(3) of the act, it indirectly classifies horizontal agreements, for the purpose of ascertaining the
anti-competitive nature. The essence and purpose of horizontal agreements is to generate policies
regarding production, distribution and price fixation. Moreover, such agreements provide a channel for
sharing of information which can usually be price sensitive and influences the market. Such practices
adversely affect competition by affecting prices and quality of products or services in the market.
3. That, with respect to the digital world and in accordance with the Sections mentioned above, it can be
inferred that both these acts, Consumer Protection Act, 2019 and Competition Act, 2002, not only define
what constitutes unfair trade practices and anti-competitive practices, they in addition through these
sections protect the welfare of the consumers.
4. That, today’s leading digital tech giants, such as Artbook and PromptApp, themselves disrupted status quo
with their entry, they further went on to attain market positions that now seem unshakable. Users of social
media platforms, tend to be where the crowd is. Regardless of any new feature that a fledging platform
might have, or whether that new feature is lacking basic quality standard, users would like to be on the
one, which has their friends and family. This is known as direct network externality, which erects an
intrinsic entry barrier not easy to surmount. Thus, network effects can make platforms markets ‘tip’
towards being concentrated, potentially even to monopoly.

24
Memorial for Appellant
 Here in the present case, Artbook acquired PromptApp. Artbook and PromptApp, by coming together they
strengthen their hold and position over the relevant market, thereby making it difficult for the new players
to enter the relevant market. This not only amounts to unfair practice but also anti-competitive as it creates
appreciable adverse effect in relation to consumer welfare. This is because, firstly, by dominating the
market and creating entry barriers, consumers are left with no better choices and further the services that
are provided lack quality, ultimately hindering the consumer interest. In the case of Excel Crop Care
Limited v. Competition Commission of India and Another29, the court stated that anti-competitive
practices arising from the acquisition or exercise of undue market power by firms result in consumer harm
in the forms of higher prices, lower quality, limited choices and lack of innovation.
5. That, further, in the digital market, ‘zero-price’ markets are ubiquitous. It is important to note that,
monetary price of zero does not mean consumers are not giving something up in exchange for the products
they consume. Data or personal attention is the price they pay for the so-called free digital services. Data
collection and data sharing by platforms, especially the gatekeepers, as in the case at hand are Artbook
and PromptApp, lead to creation of super profiles of consumers as they can control, tract and link consumer
behaviour across platforms. The ability to gather data on individual consumers, process it algorithmically
and set prices automatically with respect to real time advertising, help develop and spreads price
discrimination strategies. High-level of targeting is an intrusion to privacy. Consumer privacy is a critical
non-price parameter, besides innovation and quality.
Here in the present case, Artbook, in pursuance of its Share Purchase Agreement, shared its user data with
PromptApp, and further included a mandatory term of usage introduced by Artbook, that required potential
users to allow PromptApp to collect and use their data in order to retain their account information on
Artbook, leaving no choice for the consumers to act otherwise, thereby causes a substantial injury to
consumers as Artbook and PromptApp manipulates and exploits consumer information.
6. That, as established in the above mentioned issue, Artbook by spreading fake news and issuance of biased
advertisements, causes substantial injury to consumers as they cannot avoid the same and it misleads the
consumers. Practices or acts of Artbook and PromptApp, constituting data collection and data sharing,
misusing the same, acquiring another firm in order to create entry barriers, abusing one’s dominant
position, spreading fake news and issuing biased advertisements, all of these constitute unfair trade
practices. They not only stifle the competition but moreover and importantly, affect the welfare of
consumers. 30

29
Excel Crop Care Ltd. v. CCI, (2017) 8 SCC 47
30
“Guidelines For Prevention Of Misleading Advertisements And Endorsements For Misleading Advertisements, 2022 – Part 1 -
Advertising, Marketing & Branding - India,”available at: https://www.mondaq.com/india/advertising-marketing--
branding/1203982/guidelines-for-prevention-of-misleading-advertisements-and-endorsements-for-misleading-advertisements-
2022--part-1 (last visited March 22, 2023).
25
Memorial for Appellant
 PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most humbly
submitted before the Hon’ble Supreme Court of Indusland, that it may be graciously pleased to adjudge and
declare that:

I. The acts of the Artbook India Private Limited amount to gun-jumping.

II. Artbook is abusing the dominant position in relevant market and stifling the competition
III. The spreading of fake news and biased advertisements is creating confirmation bias along with
engaging in unfair trade practices is having adverse effect on competition and affecting
consumer welfare respectively.
IV. Artbook is violating the data privacy of consumers by misusing the sensitive data

For above reasons should impose penalty to the amount that court seems fit.

A ND , PASS ANY OTHER O RDER , D IRECTION OR R ELIEF THAT IT MAY DEEM FIT IN THE INTERESTS

OF J USTICE , F AIRNESS , E QUITY AND G OOD C ONSCIENCE .

For this act of kindness, the Respondent shall duty bound forever pray.

Place: Indusland

26
Memorial for Appellant