Introduction of case
Facts of the case
Provisions concerned in this case
The CCI in its meeting considered and observed that the reply was not in accordance with Regulation 35 of the Competition Commission of India (General) Regulations, 2009 (the, ‘General Regulations’). The Commission proceeds to examine the issues on merit to prima facie assess whether the Opposite Parties have violated provisions of Section 4 of the Competition Act.
The challenging conduct of data-sharing by WhatsApp with Facebook evidently amounts to degradation of non-price parameters of competition which is quality. That lead to objective damage to consumers, with none acceptable justification. Such conduct clear amounts to imposition of unfair terms and conditions upon the users of WhatsApp electronic communication app, in violation of the provisions of Section 4(2)(a)(i) of the Competition Act.
On 24th March 2021, the Competition Commission of India directed the Director General (‘DG’) to cause associate in nursing investigation to be created into the matter underneath the provisions of Section 26(1) of the Competition Act. The Commission conjointly directs the decigram to finish the investigation and submit the investigation report at intervals an amount of sixty days from the receipt of this order.
Delhi High Court held
Aman Lekhi argued that,“ the data collected, would include a person’s location, the kind of device used, the internet service provider and whom they are talking to, would result in creation of a customer profile and preference which would be monetised by way of targeted advertisement and all this amounts to stalking.”
Senior Advocate Harish Salve informed the Delhi High Court that the matter is pending before the Supreme Court and this is an attention-seeking endeavour by CCI.
Representing Facebook, Mukul Rohatgi said that CCI proceedings must be kept in temporary suspension.
The counsel further notified the court that the Whatsapp policy was challenged in the Supreme Court in 2016 when Facebook bought the messaging app, whatsapp in 2016 and the Centre had submitted a proper framework on this. Harish Salve on this note stated that this is not a competition issue.
The counsel on behalf of whatsapp added that user conversation is protected by end to end encryption. He also informed the court that the 2021 policy is also pending before the court. “Respect for privacy is coded since WhatsApp was started,” the advocate representing Whatsapp Harish Salve said, that it does not retain messages and are deleted from the servers after it is delivered.
Mukul Rohatgi, who was appearing on behalf of Facebook, informed the court that Facebook does not work according to WhatsApp’s policy.
Additional Solicitor General Aman Lekhi, representing CCI in this matter, stated the court that it is not a matter of privacy but of access to data.
Lekhi responded that data can have a privacy or competition facet. He also said that the issue is completely based on competition as to understand consumer behaviour and preferences that enable targeted advertising.
Concluding remarks as to why CCI intervened in the matter