NLIU LAW REVIEW

The Structural Role of Private Enforcement in Digital Markets: An Indian Competition Law Perspective

Neelanjana Ghosh and Ranjul Malik

Focus on consumer data and privacy in competition law has parallelly coincided with the rise in economies based on data-driven services in the digital market sphere. The alarming rise of Big Tech has led Competition Authorities across the EU, UK and US to introduce new legislations in the area. These implemented legislations have stretched their applicability across multiple areas of regulation. Taking a cue from the same, India is introducing the Digital Competition Act. However, an area that is turned a blind eye to, especially in India, is the role of private enforcement, especially for compensation claims by consumers. Hence through this piece, the authors make a case for an increased need for introducing a mechanism for availing antitrust damages within the Digital Competition Act. The piece describes the current private enforcement of antitrust damage provisions with their lacunae and highlights structural methods to overcome those lacunae to evolve a better system going ahead. The piece includes a multijurisdictional comparison with the ongoing mechanism for antitrust claims from our peers abroad. The authors further analyse the inability of the Indian regulator to enforce private actions by consumers. In doing so, the authors advance a two-step suggestion, the first being to increase guidance in law and the second being expanding avenues to address compensation concerns. Private compensation will give more teeth to fight against big tech and damages. Though punitive, it will act as a deterrent towards the abusive practices of Big Tech. The authors additionally propose a conducive private system for compensation claims from Competition concerns without altering the role of public systems in place.