[Media Law Column] Digital gatekeepers: Competition law and access to information

Young people increasingly obtain their news and information from social media. It is no secret that these platforms are algorithmically engineered to prioritise content that is sensational, emotive or polarising over what is accurate and balanced.

Democracy, however, requires well-informed citizens who have access to diverse viewpoints, can debate constructively and can disagree agreeably. How can modern democracy achieve these ideals when access to information is so deeply controlled and channelled by media giants in ways that allow them to profit at the expense of values fundamental to democratic life? This article examines whether competition law can offer solutions to protect free speech and access to information in the age of social media.

The intersection of communications law and competition law is rapidly gaining regulatory attention across jurisdictions. In India, the Competition Act, 2002 – enacted to foster competition and promote consumer choice, quality and fairness – has been invoked to address the abuse of dominance in the media and technology sectors. Competition law may also be deployed in more innovative ways to safeguard access to information, diversity of viewpoints and dissent, all of which lie at the heart of the fundamental right to freedom of speech and expression under the Constitution.

This article argues that competition law is uniquely positioned to respond to harms arising from the concentration of private power in dominant digital platforms. As social media and streaming services increasingly function as gatekeepers of public discourse, traditional free speech – premised on a largely state-centric understanding of censorship – proves inadequate to address structural conditions that distort access to information, suppress diversity and entrench user dependence. Competition law, by contrast, offers a framework capable of disciplining private market power that undermines the conditions necessary for a meaningful ‘marketplace of ideas’.

A recent illustration of this approach is provided by the decision of the National Company Law Appellate Tribunal (NCLAT) upholding the Competition Commission of India (CCI) ruling on WhatsApp’s 2016 privacy policy. The NCLAT held that WhatsApp’s data-sharing policy, which enabled the sharing of users’ data with other platforms under common ownership such as Meta and Instagram, adversely affected consumer choice and compromised fairness. The conduct was found to constitute an abuse of dominant position under Section 4 of the Competition Act. Crucially, the Tribunal recognised that data constitutes a critical source of market power. The scalable, reusable and monetisable nature of data enables dominant platforms to exploit user dependence by imposing “take it or leave it” terms, creating high entry barriers, restricting competitors’ access to data and distorting market dynamics.

WhatsApp’s conduct is only one instance of anti-competitive behaviour in the technology sector. Another development of concern in the media and entertainment industry is the proposed acquisition of Warner Bros by Netflix. Such a transaction raises serious competition concerns, as it would combine a dominant streaming platform with a major content producer through vertical integration. This could result in reduced competition, higher subscription prices and diminished choice for both creators and consumers. Exclusive access to vast volumes of behavioural data could confer an overwhelming advantage on Netflix, raising entry barriers and potentially curtailing creativity and diversity in the market.

Dominant platforms also exploit user dependence through subtler practices. In the United States, critics have highlighted the phenomenon of “shadow banning”, whereby platforms suppress or obscure content without notifying users. When adopted by dominant players, such practices may distort competition by disadvantaging certain content providers and reinforcing platform power. Technology platforms increasingly decide what users see, read and consume. Through opaque content moderation practices and data sharing policies, they exercise a form of editorial control that can significantly affect users’ access to information.

The idea that social media platforms are neutral conduits of information, allowing users to post content without editorial interference, is now obsolete. These platforms once enjoyed safe harbour protection under Section 79 of the Information Technology Act, 2000 on the assumption that they were passive intermediaries. That assumption no longer holds. Platforms actively curate, prioritise and customise content, often to advance their economic interests or other agendas. They have been widely accused of creating echo chambers, shaping public opinion by amplifying certain viewpoints while suppressing others and even facilitating electoral manipulation.

It is also a myth that these services are “free”. Users pay not with money, but with personal data. That data is monetised through targeted advertising and shared with a range of actors, including governments and third parties. The Cambridge Analytica scandal revealed how such data could be exploited for psychographic profiling and electoral manipulation in multiple democracies, including the United States, the United Kingdom and Brazil.

Viewed through the lens of competition law, practices such as algorithmic prioritisation, shadow banning and opaque moderation acquire a distinct legal character. When undertaken by dominant enterprises, they may disadvantage particular categories of content providers, reinforce user lock-in and raise barriers to entry for rival platforms that lack comparable access to data or user attention.

In the United States, certain state laws attempted to restrict how large platforms moderate content. In Moody v. NetChoice, industry associations challenged these laws as violations of the First Amendment. Although the Supreme Court did not finally rule on their validity, it affirmed that the First Amendment protects the editorial discretion of private platforms, including decisions to prioritise, demote or remove content. This raises important questions about whether such an approach aligns with Indian constitutional jurisprudence on free speech and media regulation.

Traditionally, no private entity may be compelled to carry speech it does not endorse, subject to narrow exceptions such as statutory warnings in public interest. However, certain digital platforms are not ordinary private actors. Their scale, ubiquity and influence give them unparalleled control over access to information and public attention. Given the public character of the functions they perform, it is arguable that they should be held to higher standards. In Kaushal Kishore v. State of Uttar Pradesh, a Constitution Bench of the Supreme Court held that fundamental rights may apply horizontally to private actors where their conduct affects the rights of others. Following this reasoning, media platforms that unreasonably restrict access to information in ways that impair the public’s right to free speech may be subject to constitutional scrutiny.

Indian courts have consistently emphasised that access to diverse and balanced information is essential for meaningful democratic choice. In The Secretary, Ministry of Information and Broadcasting v. Cricket Association of West Bengal, the Supreme Court held that freedom of speech includes the right to receive information and that democracy requires a plurality of views. The Court warned that monopolies over broadcasting – whether state-controlled or private – are inimical to free speech. The Court underscored that the citizen is entitled to a free flow of information and equal access to different viewpoints under Article 19(1)(a) of the Constitution.

Competition law is equipped to address concerns relating to the manipulation of access to information. Its intervention is not aimed at regulating content or speech, but at correcting the economic conditions that enable dominant enterprises to foreclose competition, entrench user dependence and distort markets that shape public discourse. By curbing excessive concentration of market power, competition law can help preserve the structural conditions necessary for a vibrant ‘marketplace of ideas’.

In India, competition law could also address the challenges posed by cross-media and vertical ownership in the news industry, where control over both content and distribution is increasingly concentrated. Several media houses are known to be politically aligned, if not directly owned, by political actors. Such concentration undermines media plurality and strikes at the core of democratic accountability. Citizens are entitled to a more robust and diverse ‘marketplace of ideas’ and competition law offers a promising, if under-explored, tool to achieve that objective.

Madhavi Goradia Divan is a Senior Advocate and the author of 'Facets of Media Law'.

The author acknowledges the contributions made by Advocates Sameer Choudhary and Atharva Kotwal.