There’s an old saying that goes, ‘you only know what you have, or don’t have, when it gets taken away.’ It’s a universal axiom, one finding relevance in love, health, and as of late, in India’s digital economy. For the better part of the last three years, most real money gaming (RMG) companies offering skill-based games—ranging from chess to checkers—have found themselves operating in a deeply uneven playing field. Google, which serves as the oxygen for India’s digital businesses through its ads and app store platforms—offering access to a universe of potential users, and their billions of eyeballs—opened its ecosystem to them selectively. While a handful of RMG categories were granted privileged access, the vast majority remained excluded.
The root cause is an innocuous RMG pilot program launched by Google in 2022 in India, mirroring a similar initiative launched by Google in Mexico (2022). In the Indian scenario, the pilot went on to leave all but two RMG sub-sectors on their knees. The India pilot (later indefinitely extended) only allowed daily fantasy sports (DFS) and rummy on Google’s Play Store, with similar changes implemented in advertising policies later on. Operators offering non-DFS and non-rummy skill games were interminably excluded from the world’s most powerful discoverability engine, on inscrutable grounds. User acquisition metrics and profit margins nosedived for many of those excluded, while they catapulted for a chosen few.
It is perhaps no surprise then that the past year bore witness to protracted arguments before India’s antitrust regulator, the Competition Commission of India (CCI), on a singular question: did Google abuse its market dominance to selectively distort India’s online gaming market? In its initial observations on the complaint filed by gaming company WinZO, the CCI answered yes, directing an investigation into the matter. However, before courtrooms could heat up, Google had a change of heart. The tech giant recently informed the CCI that it would amend its app store and advertising policies, so that all RMG formats offering skill games can access Google’s digital ecosystem.
The regulatory landscape for online real money money gaming is shifting in India, most notably through the passing of a recent bill banning the sector altogether. Irrespective of that fact, Google’s submission before the CCI marks an important leap forward for India’s digital economy. What emerges from the ongoing case is a clear principle—that irrespective of the technology in question, antitrust regulators are paying closer attention to the anticompetitive actions of digital gatekeepers. The discussion around ex ante digital competition laws in India, which aim to address potential harms proactively rather than retrospectively, is therefore gaining renewed significance.
The perils of the Play Store pilot
Google’s RMG pilot program in India extended well beyond its intended cut-off date of September 2023 (with an indefinite extension post July 2024). This is despite simultaneous test drives for online gaming in Mexico ending by 2024. Among other arguments, in the CCI order, Google justified the extension, due to delays in the implementation of a regulatory framework for online gaming in India, leaving little clarity on which skill games are legal. Although online real money gaming now stands to be banned in India, with companies expected to challenge the law in court and seek a stay, there has so far been no unified federal framework clarifying which skill-based games were legally permissible. In the absence of clear laws, Google followed what India’s courts had to say on the matter, inevitably platforming the distribution of skill games like DFS and rummy, both of which had judicial verdicts confirming them to be skill-based.
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However, Google’s approach belies a fundamental question: Does a game’s character cease to exist if not decided upon by a constitutional court? Chess undeniably remains a game of skill, irrespective of whether it is hosted on an RMG platform or not. So do many other new-age RMG formats—many of which have been unable to access Google’s formats, and compete effectively, simply because they haven’t been taken to court. To that end, court orders, while critical instruments shaping policy, are not the only ways in which the ‘skill’ of games can or should be determined.
Google’s approach, in its commitment application with the CCI, is therefore a welcome recognition of an alternative approach to determining whether a game is skill-based or not. As per its submissions to the CCI, Google will allow all games where developers provide evidence that a “recognized third party” (like a gaming industry association) has certified the game to be skill-based based on Google’s specified standards and prevailing law. While this could open up the vast digital ecosystem for India’s game developers, concerns remain around how certifiers will be selected and how fairly the policy will be enforced. If implemented with genuine transparency and consistency, however, it could mark a significant shift in platform access for the sector.
Looking ahead
Google’s remedial efforts are in the right direction, and will hopefully, level the competitive field. However, one cannot help but wonder about the scale of what may have been lost. India’s gaming market has visibly concentrated in favor of some formats, a tale best told by cricket jersey sponsors, bus stop ads, and non-stop SMS promotions. The pilot also went on for two years—a long time in the world of business, and certainly enough time for DFS and rummy operators to leap ahead in the highly competitive gaming sector. Those excluded will have to make up for lost time, and whether they will be able to, is circumspect.
This also lays bare the clear discretionary power that gatekeepers hold over a privately-owned digital economy—digital businesses are operating at the mercy of opaque infrastructure and policies. Fixing the imbalance requires relaying the foundations upon which digital innovation is built. On the infrastructure side, India’s early (although not faultless) attempts at solving these issues include Digital Public Infrastructure (DPIs), wherein the Indian state has taken the responsibility of building core digital infrastructural services embedded in principles of openness, transparency, and interoperability, amongst others. Payments services like the Unified Payments Interface, and open e-commerce platforms like Open Network for Digital Commerce, provide a fillip to Indian-made distribution channels that every business can equally access and participate in.
However, while good examples of how platforms can be designed to counter private monopolies, DPIs can only do so much—sometimes the law needs to incentivize good behavior too. If anything, the gaming-Google showdown is a case study in why India needs ex ante antitrust approaches for digital sectors, which preemptively ensure that the private builders of the digital economy do not give preferential access to services favored by them. In a digital economy built on private pipes, ex ante competition regulation should act as a valve—ensuring fair, open access to essential platforms from the start.
