Introduction
Self-preferencing — the practice by which a vertically integrated platform operator gives preferential treatment to its own products and services over competing products offered through its platform — has become one of the central battlegrounds in digital competition law globally. When a search engine ranks its own shopping comparison results above those of independent comparison sites, when an app store imposes terms on third-party apps that its own competing apps are not subject to, when an e-commerce marketplace promotes private-label products in response to searches that would otherwise surface third-party sellers — each instance represents a potential distortion of the competitive dynamics on which the platform’s users depend.
India’s Competition Commission has engaged with self-preferencing through its abuse of dominance jurisdiction under Section 4 of the Competition Act 2002, particularly in the long-running Google matters. The 2023 amendments to the Competition Act added specific provisions addressing self-preferencing in digital markets. What has emerged from this combination of judicial enforcement and legislative reform is the beginning of an Indian legal standard for self-preferencing — but one that remains under construction and contains significant interpretive gaps.
Legal Framework
Section 4 of the Competition Act 2002 prohibits abuse of dominant position by an enterprise. The categories of abuse specified in Section 4(2) include imposing unfair or discriminatory conditions in purchase or sale of goods or services, indulging in practices resulting in denial of market access, and using a dominant position in one relevant market to enter into or protect another relevant market. Self-preferencing by a dominant platform can potentially be characterised as unfair or discriminatory practice, denial of market access to competing services, or leveraging — the use of dominance in one market to extend it into another.
The 2023 Amendment introduced a specific provision addressing digital market conduct, including self-preferencing. Section 4A of the amended Act (the new digital markets provision) identifies as potentially abusive the practice by which a digital enterprise provides more favourable treatment to its own products or services as compared to those of third parties on its platform. Critically, this provision applies specifically to enterprises designated as “systemically significant digital enterprises” (SSDEs) — a designation concept analogous to the EU’s DMA gatekeeper status — though the implementing regulations for SSDE designation are still being finalised.
For enterprises not designated as SSDEs, self-preferencing continues to be addressed through the existing Section 4 framework, which requires case-by-case analysis of dominance, the relevant market, and the competitive effects of the preferential conduct.
CCI Orders and Their Analysis
The CCI’s order in Matrimony.com Ltd v. Google LLC (Case No. 07 of 2012), decided after protracted investigation and the Supreme Court’s intervention in the investigation process, addressed Google’s search result ranking practices. The CCI found that Google had engaged in self-preferencing by prioritising Universal Search results (which included Google’s own properties — Maps, Flight results, Product Listing Ads) in its search rankings, and that this conduct amounted to an abuse of dominance in the relevant market for online search advertising in India.
The Android case orders (In Re: Limiting of Consumer Choice by Tying Services on Android Devices, Case No. 39 of 2018) addressed a broader range of conduct including pre-installation of Google’s suite of apps on Android devices (tying), the Mobile Application Distribution Agreement’s exclusivity requirements, and the prohibition on device manufacturers producing devices running modified Android versions (anti-fragmentation agreements). The CCI characterised several of these practices as self-preferencing — specifically, the requirement that Google Search be set as the default search engine on Android devices and the prohibition on competing search engines achieving equivalent integration.
The remedial orders in the Android case — requiring Google to allow device manufacturers to configure devices with alternative default apps and permitting third-party search engine pre-installation — are among the most specific self-preferencing remedies issued by any competition authority globally and provide a practical template for what effective self-preferencing remediation requires.
Contemporary Issues and Analysis
The definition of self-preferencing remains contested at the margins. Plainly, a dominant platform that explicitly ranks its own services higher than equally or better-performing competing services without legitimate justification is engaging in self-preferencing. But where does product integration end and self-preferencing begin? When Google incorporates its own flight search results into the main search results page — a feature that consumers generally find useful — is this self-preferencing or product improvement? The answer depends on whether the integration forecloses competition from alternative flight search providers, whether the integration is technically justified, and whether equivalent integration is available to competing providers on non-discriminatory terms.
The “objective justification” defence is the critical variable. In EU competition law, the Court of Justice established in the Google Shopping case (Case C-48/22 P) that dominant enterprises cannot justify self-preferencing on efficiency grounds in the same way that non-dominant enterprises can justify conduct that has exclusionary effects — the burden of justification is higher, and pure commercial efficiency does not suffice if the conduct has exclusionary effects on an equivalent rival. Whether Indian courts would adopt a similar approach to objective justification in self-preferencing cases is not settled.
The measurement of harm is a second area of analytical complexity. Self-preferencing causes competitive harm by foreclosing rivals from a distribution channel — the dominant platform — on which they depend. Measuring that foreclosure effect requires demonstrating both that the rival would have achieved better placement absent the preferential conduct and that the foreclosure had a material effect on the rival’s competitive position. Both are inherently counterfactual assessments, and the evidentiary standards applicable in CCI proceedings are still developing.
Comparative and International Perspective
The EU’s Google Shopping decision (European Commission, 2017, upheld by the EU General Court and Court of Justice) is the most extensively reasoned self-preferencing analysis in global competition law. The Commission found that Google had favoured its own comparison shopping service in its general search results and had relegated rival comparison shopping services to positions where they were less visible. The fine was €2.42 billion, and the remedial order required Google to provide equal treatment to rival comparison shopping services in its search results.
The German Bundeskartellamt’s cases under the “paramount cross-market significance” provision — designating Amazon and Meta in 2022 and 2023 respectively — have addressed self-preferencing through a quasi-regulatory mechanism that does not require proof of harm in each instance, instead imposing obligations on designated enterprises to refrain from self-preferencing across their business activities.
The US Federal Trade Commission’s updated approach to platform self-preferencing — more aggressive under the Khan-era leadership, with several major platform investigations initiated — represents an enforcement posture that, unlike the EU and Germany, operates without specific legislative authority for digital markets and must work within the traditional Sherman Act and FTC Act frameworks.
Practical and Policy Implications
For e-commerce marketplace operators in India — Amazon India, Flipkart, and potentially Meesho and other growing platforms — the self-preferencing provisions create specific compliance obligations around private label promotion, seller search ranking algorithms, and terms applied to third-party sellers. The CCI’s investigation of Amazon and Flipkart has centred on precisely these issues, and a finding against either entity would establish the Indian standard for e-commerce platform self-preferencing.
For advertisers and businesses that depend on dominant search or discovery platforms for customer acquisition, the self-preferencing rules are important protections — ensuring that platform operators cannot use their control over the discovery infrastructure to systematically disadvantage businesses that compete with the platform’s own services.
Suggestions and Reforms
The CCI should publish detailed guidance on self-preferencing analysis, specifying the economic tests it will apply in assessing whether platform conduct constitutes self-preferencing, the objective justification standards, and the evidentiary approach to competitive harm measurement. Germany’s Bundeskartellamt has published extensive methodological guidance that could serve as a model.
The SSDE designation process under the 2023 Amendment should be completed expeditiously, with the designated enterprises subject to enhanced disclosure obligations and per se prohibitions on the most egregious forms of self-preferencing — specifically, algorithmic manipulation of rankings to systematically disadvantage competing services.
Conclusion
The Indian legal standard for self-preferencing is being built from two directions simultaneously — enforcement decisions developing Section 4 analysis in the context of specific digital market conduct, and legislative provisions in the 2023 Amendment creating a more structured framework for designated enterprises. The result is a legal landscape that is more coherent than it was five years ago but still contains significant interpretive uncertainty. The CCI’s conduct in the pending Amazon and Flipkart investigation will be the most important single input into the standard’s development in the near term, and the quality of the Commission’s economic analysis in those decisions will determine whether the emerging Indian standard achieves the analytical rigour that effective digital market regulation requires.
