The Tribunal deferred a decision to a future date.
The Competition Tribunal is hard pressed to decide on whether to give Lottoland South Africa a further six-month interim relief period to advertise on Google Ireland Limited and Google South Africa after the global search engine excluded it from its landing page to protect itself from non-compliance with the National Lotteries Act and some of its policies.
Lottoland SA offers a wide range of lotteries and sports betting.
Advocate Tembeka Ngcukaitobi chaired the Tribunal, which comprises Dr Thando Vilakazi and Andre Wessels.
Lottoland SA was represented by Advocate Paul Farlam, while Google Ireland and Google SA were represented by Advocate Michelle le Roux.
Lottoland SA yesterday told the Tribunal that the exclusionary behaviour by Google on its platform had prejudiced its advertising functions and, though it could not quantify the extent of loss, there was evidence of the impact of the exclusion on its rivals and downstream clientele.
Lottoland SA is asking that the Tribunal direct Google to permit the betting operator access to Google’s advertising service platform. It said it would adhere to Google’s terms and conditions and pay Google’s fees for such access.
This as Lottoland SA alleges that Google terminated its access to Google's advertising services without any legitimate justification.
Lottoland SA, therefore, submitted an abuse of dominance complaint to the Competition Commission and had instituted this interim relief application before the Tribunal.
Lottoland argued that since its expulsion from the landing page in September 2020, it had lost an incalculable amount of market share, which could not be recovered.
It said Google, being a dominant search engine service provider with 99% of the local market, had prejudiced its revenue levels with the expulsion.
Lottoland SA seeks interim relief for six months from the date of the Tribunal’s order, or pending the outcome of its complaint against Google to the Commission, whichever occurred first.
Farlam argued that while the submission was that the cost of lost revenue and contact with clientele was as yet unquantified, there was real harm in its downstream market as a lot of searches went unallocated.
He said the incentives Lottoland SA offered to its clientele were lost in the search engine which prejudiced their business model.
Google, through Advocate Michelle le Roux said there was no evidence brought by Lottoland SA that it had suffered harm, that Google benefits from the exclusion and that the unilateral exclusion targeted Lottoland SA only over the other 29 websites competing with Lottoland SA.
“We are trying to comply with local acts and laws, if in our compliance with the Commission's or Tribunal's decision we are found to be breaking aspects of the National Lotteries Act or the Mpumalanga Gambling Board policies, it will harm the reputation of Google,” Le Roux said.
She said Lottoland SA had not proven harm by the exclusion nor that Google stood to benefit from excluding it on the platform or that customers were being denied opportunity by the exclusion.
“Lottoland’s case is not about entry or participation in the market, it is about expansion in the market. They are making revenue from the more than 3 000 clients gained since they accessed the platform, but they want to gain more. They are not being prejudiced,“ Le Roux said.
She said Lottoland SA had not proven the case for interim relief, particularly as it had taken more than two years since the 2020 exclusion for it to legally confront the matter.
The Tribunal deferred a decision to a future date.
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