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Universal Right to access Apple’s App Store? A biased application of T&C to let Apps in or out

We have argued how Digital Services, growing in number of users at previously unknown speeds thanks to their fast scalability and the global nature of the Internet, are creating challenges that are difficult to solve on the way user’s policies are set and implemented.

Social Networks, App Stores and Marketplaces are not only having a far reaching impact on freedom of expression and other important constitutional values through their content policies but also introducing imbalances in the competitive landscape due to anti-competitive behaviours backed by their Terms and Conditions of use.
Dominant digital platforms are acting as gatekeepers of digital market places. They are deciding which services or content can access such digital market places, with decisions many times based on pure commercial causes rather than based on the rule of law or an unbiased application of Terms & Conditions of use.
Two Apps provide us with real life examples on how Apple arbitrarily applies Terms & Conditions of use to block or allow access to its successful marketplace, the AppStore:  AppGratis and RojaDirecta.

AppGratis – French Digital Economy Ministry, Fleur Pellerin, asked the European Commission to examine the takedown of “AppGratis” from its App Store
AppGratis is an app-discovery application founded in 2010 by French engineer, Simon Dawlat. AppGratis enables its users to get paid Apps either at a discounted price or even for free. In April 2013, Apple decided to take the French application AppGratis out of its App Store. Apple’s unilateral decision, even against its own rules, unleashed a strong debate among stakeholders that denounced an abuse of dominance position by Apple.
Also the French Minister Fleur Pellerin commented the decision by Apple: “The economic model is jeopardized by a unilateral decision… There is an issue of fairness in commercial relations…” she stated. Moreover, she announced plans to closer investigate how Apple “imposes” its rules on consumers and policy makers. To date, both the French Competition Authorities and the European Commission are investigating possible abuse of dominance regarding Apps Stores.

RojaDirecta – An App available on the AppStore providing free access to sport events subject to IP protection rights without the authorization of the right holders.
RojaDirecta.me is a web platform hosting a database of links giving access to free streaming of live sport events. Though RojaDirecta itself may not be an illegal activity in some jurisdictions -just providing a list of links cannot be considered unlawful in many countries- its business model is based on the illegal provision of premium sport content without the authorization of the right holders. Pay TV content distributors, whether through traditional or Internet based models, are being economically impaired by users accessing freely to those contents they are providing through a paid-based business model and for which they satisfy significant upfront- fees payments to acquire the broadcasting rights.
RojaDirecta has designed and made available at the AppStore an App enabling users to get directly on their iOS devices the free life streaming of these IP protected sporting events without the authorization of the right owners, replicating the RojaDirecta web based business model. As such, Apple is not only impairing the legal business models of content distributors they may be competing with but also gaining revenues from downloads of the RojaDirecta App.
Certainly, AppGratis and RojaDirecta cases result from an arbitrary and biased application of Apple’s Terms and Conditions of use policy.