Document Fragment View

Matching Fragments

45. With regard to the allegation relating to exclusive data ownership within agreements with single screen theatres being unfair and discriminatory condition under Section 4(2)(a)(i) of the Act, is concerned, the OP has reiterated its stance that there has been no 'imposition' on cinemas with regard to the data sharing clauses in agreements as cinemas voluntarily retain the consumer data sharing clause due to their commercial interests and each cinema has the autonomy to negotiate specific terms in its agreements with the OP. The OP has also submitted that the consumer data is typically not co-owned as a matter of industry practice. However, in case of cinemas with whom the OP has no common ownership of customer data by agreement, the data is shared in hashed format. The data is used by the cinemas to determine the number of bookings made, time of booking, platform through which the booking was made etc. The OP has stated that cinemas do not request for data co-ownership generally but there are instances 0000 000 PUBLIC VERSION wherein the OP has shared data with the cinemas on need-basis despite the agreement not allowing for the same.

64. Upon consideration of the aforesaid, the following points of determination arise before the Commission in the present matter, which need to be analysed in the light of Section 4 of the Act :

1. What is the 'relevant market' in the present case?
2. Whether the OP holds a dominant position in the delineated relevant market?
3. If yes, whether the OP has abused its dominant position in the relevant market by:
a. Reserving seats during the term of agreements with single screen cinemas, thereby, imposing an unfair or discriminatory condition in contravention to Section 4(2)(a)(i) and Section 4(2)(b)(i) of the Act? b. Imposing unfair and discriminatory clauses relating to exclusivity in data ownership within agreements with single screen theatres, thereby contravening Section 4(2)(a)(i) of the Act?

75. After analysis of dominance, the Commission now proceeds to examine the conduct of the OP to ascertain whether reservation of seats during the term of agreements between the OP and single-screen cinemas, imposition of exclusivity pertaining to data ownership in agreements of the OP with single screen theatres, discrimination in sharing of revenue with cinemas in furtherance of convenience fee charged and entering into exclusive and restrictive agreements with single screen cinemas/multiplexes is unfair, discriminatory and anti- competitive in terms of Section 4(2)(a)(i), 4(2)(b)(i) and 4(2)(c) of the Act. The Commission would also examine whether the conduct of the OP has resulted in appreciable adverse effect on competition in India.

78. Based on the aforesaid discussion, the Commission is of the opinion that from the evidence available on record, it cannot be established that reserving seats during the term of the agreement with single screen cinemas leads to contravention of provisions of Section 4(2)(a)(i) and Section 4(2)(b)(i) of the Act.

79. Regarding the allegation of clauses in the agreements of the OP with single screen theatres and multiplexes, related to exclusive data ownership being unfair and discriminatory under Section 4(2)(a)(i) of the Act, the Commission notes that the DG has examined the OP's agreements with cinemas and notes that the customer data is typically not co-owned with cinemas as a matter of industry practice. The Commission also notes that the OP co-owns customer data with multiplexes like 000 but in case of other cinemas (except 000), the OP shares data in hashed format for the purpose of internal accounting and verification. The Commission also takes note of the fact that the OP shares customer data with the cinemas whenever, they ask for it. On the aspect of discrimination, DG has stated that co-owing customer data with multiplexes like 000 and sharing data in hashed format with other cinemas amounts to imposition of discriminatory condition as it prevents cinemas from targeting or steering away customers by offering them better terms. However, the OP has submitted that there has been no discrimination as all cinemas are not of the same class or category. After perusal of the material on record, the Commission observes that the allegation of PUBLIC VERSION 'discrimination', as stated under Section 4(2)(a)(i) of the Act between single screen cinemas and multiplexes is not sustainable, as the said provision is applicable where the OP has treated similarly-situated cinemas unequally. In the present case, cinemas listed on the aggregator's platform do not constitute a single, homogenous class. Single-screen cinemas and multiplexes differ materially in terms of infrastructure, ability to handle customer data securely, amenities, operational costs, and the overall quality of services offered. Since, Section 4 of the Act prohibits unequal treatment only among 'like' entities, and the cinemas, in the present scenario, are not on the same footing, thus, no discriminatory abuse can be said to arise.