Whatsapp Inc has updated its privacy policy and terms of service for WhatsApp users. It was reported that the new policy makes it binding for the users to simply accept the terms and conditions so as to maintain their WhatsApp account information and provides as to how it will share personalised user information with Facebook Inc and its subsidiaries.

Introduction of case
Instant messaging Whatsapp’s controversial policy update has led CCI to question its anti-competitive behaviour. CCI is of the opinion that the update could lead to excessive data collection and will amount to stalking of its users. Later Facebook and Whatsapp have separately filed a petition in Delhi high court to dismiss CCI order that called for an investigation into the new privacy policy update by Whatsapp.

Facts of the case
Whatsapp Inc has updated its privacy policy and terms of service for WhatsApp users. It was lay to rest alia reported that the new policy makes it binding for the users to simply accept the terms and conditions so as to maintain their WhatsApp account information and provides as to how it will share personalised user information with Facebook Inc and its subsidiaries. Thus, the notification shows that in order to use the services of Whatsapp, from 08.02.2021 onwards, users will have to compulsorily accept the new terms and policy in their entirely. The Competition Commission of India, in its meeting on 19.01.2021, decided to take suo motto cognisance of the matter. Facebook has submitted that Facebook Inc is the parent company of WhatsApp, Facebook and WhatsApp are distinct legal entities. It is WhatsApp (not Facebook) that gives and operates WhatsApp instant messaging service that’s the topic of the Hon’ble Commission’s Order. Facebook humbly submits that it should not be arrayed as a party to these proceedings and WhatsApp is the appropriate entity to provide the Hon’ble Commission with the information sought. As far as WhatsApp cares, it filed public version of its response dated 03.02.2021 vide its submission dated 25.02.2021. WhatsApp did not suit the directions of the Commission but has also taken the pleas which are ex facie untenable. In this regard, the Commission notes that the reference to the provisions of Section 35 of the Act by WhatsApp is meticulously gone astray. WhatsApp has cited the decision of the Hon’ble Supreme Court in Competition Commission of India v. Bharti Airtel Limited and others, (2019) 2 SCC 521, and stated that the said decision highlights the need to maintain civility between decisions of different authorities on the same issues reported that the Commission should only exercise jurisdiction after the proceedings before the sectoral regulator had concluded and attained the climax. WhatsApp has also relied on the choices of the Commission in Harshita Chawla v. WhatsApp Inc, Case No. 15 of 2020 (‘Harshita Chawla case’) also as XYZ v. Alphabet Inc, Case No. 07 of 2020 to contend that issues associated with data localization and data sharing needn’t be looked in under the Competition law. In light of its averments, WhatsApp has submitted that the 2021 Update raises no concerns from a contest perspective. 2021 Update focuses to provide greater transparency by further explaining the usage, collection and sharing of data which users had consented to under the 2016 Update. The Commission had an affair to look at the relevant market within the context of business practices of WhatsApp and Facebook in Harshita Chawla case wherein an Information was filed before the Commission alleging inter alia infringement of the provisions of Section 4 of the Act against WhatsApp and Facebook for abusing their dominant position in initiation of their payment app services. WhatsApp in India operates in the ‘market for Over-The-Top (OTT) messaging apps through smart phones in India. The Commission concluded that WhatsApp is dominant in the relevant market for OTT messaging apps through smart phones in India. In light of the said holding of the Commission in the Harshita Chawla case, there is no occasion to separately and independently examine the issue of relevant market and dominance of WhatsApp.

Provisions concerned in this case
During an important development, the Competition Commission of India ordered a hunt into the new privacy policy of WhatsApp, once creating a clear observation that it absolutely was violating the Competition Act, 2002.
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.

CCI held
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
The Delhi high court has set aside the order as of now on Facebook and Whatsapp pleas challenging the CCI’s order for an examination concerning the messaging app’s privacy policy and the matter is up for another hearing at a later date.
A single bench consisting of Justice Navin Chawla reserved the order after the counsel of all the sides closed their contentions. The court was hearing both the petitions challenging the order which was passed by CCI directing a test into the new privacy policy and that the test ought to be finished within 60 days.
Facebook and Whatsapp included in their arguments that since the issue of Whatsapp’s privacy policy is being dealt by the Supreme Court therefore there was no need of CCI to order the probe and intervene in the matter.

Extra Comments
In a hearing in the Delhi High Court, Whatsapp and Facebook collectively argued that the Competition Commission of India (CCI) has interfered in the matter by ordering an investigation into the Whatsapp new privacy policy and are overreaching its jurisdiction even after the issue of privacy is already being dealt by the Supreme Court. However, the CCI argued that it looked into the competition aspect and are not alleging violation of personal privacy. Moreover, they added in the court that whether the data collection by whatsapp and sharing it with Facebook would amount to an anti-competitive practice or abuse of dominant position can be examined only after the investigation.
Senior advocate Aman Lekhi who is representing CCI made his contentions that the new privacy policy of whatsapp would lead to excessive data collection and “stalking” of consumers for targeted advertisement to bring in more users and is therefore, an alleged abuse of dominant position. The matter is being heard by Justice Navin Chawla and WhatsApp and Facebook are represented by senior advocates Harish Salve and Mukul Rohatgi.
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
The CCI is of opinion that , “users, as owners of their personalised data, are entitled to be informed about the extent, scope and purpose of sharing of such data by WhatsApp with other Facebook Companies”. Nevertheless, it appears from the Privacy Policy and Terms of Service, which many of the information categories described therein, are too broad, vague and meaningless. For instance, information on how users “interact with others (including businesses)” is not clearly defined, what would constitute “service-related information”, “mobile device information”, “payments or business features”, etc. are also undefined. It is also suitable to note that in countless places in the policy while illustrating the data to be collected, the list is typical and not comprehensive due to usage of words like ‘includes’, ‘such as’, ‘For example’, etc, which suggests that the scope of sharing may extend beyond the information categories that have been expressly mentioned in the policy. Such vagueness, open-endedness and incomplete disclosures hide the actual data cost that a user incurs for availing WhatsApp services. It is also not clear from the policy whether the historical data of users would also be shared with Facebook Companies and whether data would be shared in respect of those WhatsApp users also who aren’t present on other apps of Facebook.

Data has such a noteworthy importance for businesses than at any other time whether it is for customized services or internal investigation or targeted advertising, it has become capable of shifting competitive advantage. The CCI’s suo motto cognizance of Whatsapp’s privacy policy is one of the instances of this fact. It could be likewise of characteristic of CCI’s expectations to adopt more interventionist approach where it accepts that user’s data bring abused in a way that makes obstructions to entry and otherwise impacts competition or interests of the consumer. The CCI has wide powers under the Competition Act in the event of finding abuse of dominance and may pass such orders or requests as it deems fit. It will likewise be intriguing to perceive how the convergence among privacy and competition in the context of Data plays out over time and specifically how the CCI encompasses the limits of competition, privacy and data protection concerns.

Tanya Sinha and Siddhant Singh are original authors of the article “Whatsapp Privacy policy Case Summary in the light of CCI”. The authors have given the publishing rights only to “The Daily Guardian” and no other organisation. The authors claim that the content written in the article is original and written by the authors originally without any plagiarism.