• Legal advice required to file case against Facebook under CCI Act

My query pertains to a case we wish to file against Facebook India with the Competition Commission of India.

We run an online matchmaking site and have been trying to advertise on Facebook. Whenever, we setup ads and try to run them, all our ads are instantly denied saying "Dating ads are not allowed. We will let you know once we allow new advertisers under this category". I tried contacting Facebook, tried talking to their direct ad sales team in India but no one responded to our queries correctly.

However, all of our Indian competitors (old and new apps and websites) are able to run ads on Facebook and I have screenshots of these ads. I do have substantial proof against Facebook against this. I strongly feel that this is putting competitors to an advantage while we have lost the opportunity to advertise on Facebook. This is a major competitive disadvantage to us. Facebook should either allow us to run ads while others are able or suspend other advertisers. 

I do have substantial proof in form of Facebook support responses, ads screenshots, etc which can help build the evidence where our ads are declined all the time, while competitor ads are running. I am quite serious about pursuing the matter further.

I wish to get answers from lawyers who have expertise on matters related to Competition Act, who can guide me and assist me in the case. 

Is it possible to pursue the case in Competition Commission as this is clear discrimination of services by a major advertising company allowing competitors, but us to advertise? 

PS: Please refrain from telling me how to run ads on Facebook. We know and have tried all possibilites to setup ads on Facebook and even contacting them for a direct sales account. Kindly  please provide your advice related to legal aspect of the query.
Asked 1 year ago in Business Law from Hyderabad, Andhra Pradesh
1. Competition Law is relatively new concept in India and is yet to gain momentum as far frequent taking recourse of this law is concerned.
2. The major area to seek relief under this act is - abuse of dominant position and cartelisaion.
3. In your case the Facebook is doing neither of the things. You can advertise with hundreds of other social networking sites. One certainly can't force Facebook to choose it's customers.
4. To me no case lies against Facebook though if you wish you can try your luck.
Devajyoti Barman
Advocate, Kolkata
5186 Answers
54 Consultations
4.9 on 5.0
1) The Competition Act prohibits or
regulates (A) Anticompetitive agreements (u/s 3 of the Act) (B) Abuse of dominant position (u/s 4 ofthe Act) (C) Combinations (u/s 5 & 6 of the Act).

2) . Section 3 (1) of theCompetition Act prohibits any agreement with respect to “production, supply, distribution, storage, andacquisition or control of goods or services which causes or is likely to cause an appreciable adverse effect on competition within India”.

3)  Section 19
(3) provides the following factors that the CCI must have due regard to which determining whether an
agreement has an AAEC under Section 3:
i. creation of barriers to new entrants in the market;
ii. driving existing competitors out of the market;
iii. foreclosure of competition by hindering entry into the market;
iv. accrual of benefits to consumers;etc

4) Section 4 prohibits any enterprise from abusing its dominant position. The term ‘dominant position’has been defined in the Act as “a position of strength, enjoyed by an enterprise, in the relevant market,
in India, which enables it to operate independently of competitive forces prevailing in the relevantmarket; or affect its competitors or consumers or the relevant market in its favour”

5) Section 27 of the Act lays down remedies for the violation of Section 3 and 4 of the Competition Act.
The CCI may issue a “cease and desist’ order, or impose a penalty not exceeding ‘10 percent of theaverage turnover during the preceding three years’ from the date of order.

6) on account of abuse of dominant position by Facebook refusing to permit you to advertise while permitting your competitiors to advertise you can lodge complaint with CCI 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
A. Most online advertising relies on "cookies" to decide which adverts to show on different sites.

B. Did you scrutinized the terms and conditions policy in the Face Book.

C. Facebook reserves the right to designate, in its sole discretion, that certain of our brands, products, or services are governed by separate terms. 

D. As per the Clause 18 Sub Provision 10 speaks about that FB reserve all rights not expressly granted to you. And you need to know the Data Policy of the Face book with respect to the same.

F. Clause 15 of Policy speaks about Dispute: Disputes

1. You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.

2. If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim. Although we provide rules for user conduct, we do not control or direct users' actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, of any user of Facebook.

However, if you are not satisfied regarding any terms of the policy due to conflict to local laws  that you can issue a legal notice against the Admin and management and get the damages and remedy within the local laws.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
The Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007, follows the philosophy of modern competition laws. The Act prohibits anti-competitive agreements, abuse of dominant position by enterprises and regulates combinations (acquisition, acquiring of control and M&A), which causes or likely to cause an appreciable adverse effect on competition within India. 
It is the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade in the markets of India. 
The Commission is also required to give opinion on competition issues on a reference received from a statutory authority established under any law and to undertake competition advocacy, create public awareness and impart training on competition issues. 
Competition is the best means of ensuring that the ‘Common Man’ or ‘Aam Aadmi’ has access to the broadest range of goods and services at the most competitive prices. With increased competition, producers will have maximum incentive to innovate and specialize. This would result in reduced costs and wider choice to consumers. A fair competition in market is essential to achieve this objective. Our goal is to create and sustain fair competition in the economy that will provide a ‘level playing field’ to the producers and make the markets work for the welfare of the consumers. 
For further details you can refer to the section 4 of Competition Act, 2012 and also other sections nemely 46 onward for relief and remedy to your issue. 
T Kalaiselvan
Advocate, Vellore
13964 Answers
127 Consultations
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1. What do you wish to make the FB liable for? Do you intend to seek damages from it, or a judicial order directing it to allow you to host your ads?

2. Competition Commission is not the appropriate legal forum to address the issue. You should move the civil court. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
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1. First of all try to find out why face book is refusing to post your adv. despite the fact that you have already clarrified that yours is not a dating site but a matrimonial site like your competitors whose adv they have already posted,

2. Send them a legal notice calling upon them to post your adv with in 10 days there of failing which you will be constrained to seek legal intervention,

3. If your adv. is still not posted, file a case as per Competition Act,2002.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0

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