How Publicis turns procedure into strategy in CCI's cartelisation probe

New Delhi: Publicis is leveraging process in its response to the Competition Commission of India’s (CCI) yearlong investigation into alleged cartelisation in the advertising industry.

By approaching the Delhi High Court to challenge the CCI’s refusal to share key case documents, Publicis aims to establish clear rules of engagement before addressing the substance of the allegations.

The probe, initiated after a leniency filing by Dentsu in 2024, led to raids across major holding groups.

In March, CCI officials searched the offices of Publicis, WPP’s GroupM, IPG Mediabrands India, Dentsu, and Omnicom, seizing materials. On August 4, the CCI summoned Publicis South Asia CEO Anupriya Acharya, requesting revenue-sharing contracts and other records.

Publicis argues it cannot fully comprehend the case or prepare a defense without access to the documents underpinning the allegations.

The Delhi High Court will now determine the extent to which investigative secrecy can be maintained without compromising a fair hearing.

Publicis’ move strategically employs procedural tools. It seeks court-mandated disclosures, timelines, redactions, and access before responding to the merits of the case.

If the court orders limited disclosures, Publicis gains the minimum it needs to craft a meaningful response. If the court upholds the CCI’s confidentiality claims, Publicis retains options to pursue redactions, defined disclosure windows, or further escalation.

The legal framework offers arguments for both sides. “The CCI is not obligated to grant Publicis full access to investigation documents and must maintain confidentiality,” said advocate Rajkumar Varier. “However, with the matter before the Delhi High Court, the court will decide whether the CCI’s approach balances investigative secrecy with Publicis’ right to a fair defense.”

The right to a fair hearing is enshrined in the Competition Act. Advocate Sushant Chaturvedi referenced Sections 36(1) and 37, stating, “Section 36(1) mandates that the CCI adhere to principles of natural justice. Section 37 entitles a party to copies of documents, the investigation report, and the opportunity to file a reply and objections.”

Chaturvedi noted that the CCI can withhold third-party confidential material, internal notes, deliberations of the CCI or Director General, or information where disclosure could harm markets.

He cited precedents, “In Telefonaktiebolaget LM Ericsson vs. CCI (Delhi HC, 2016), the court upheld that confidential information can be withheld or provided in redacted form. In Excel Corp vs. CCI (2017), the Supreme Court ruled that parties must have access to the Director General’s report.”

These precedents suggest a likely middle ground, potentially involving redacted third-party content and time-bound access to materials supporting the allegations.

Such measures could preserve the probe’s integrity while providing respondents a fair opportunity to defend themselves.

If misconduct is proven, the CCI can impose penalties of up to three times the profit or 10% of global turnover per year. The High Court’s ruling on disclosures and timelines will significantly influence Publicis’ defense strategy.

If the court sides with the CCI, the probe will proceed with limited document access, though Publicis could still seek redactions, time-bound disclosures, or appeal to the Supreme Court.

Additionally, the Delhi High Court’s decision on what is disclosed, what is withheld, and when parties access case files will shape the future of competition cases in India.