Read Time: 05 minutes

The Single Judge Bench of Justice Navin Chawla has dismissed the petition filed by Facebook & Whatsapp challenging the CCI’s order for probe against Whatsapp’s new privacy policy. 

“We have taken note that the challenge to whatsapp’s update has been filed by the petitioner & intervener therein & nothing has been stated on observation of Supreme Court in this regards.”, Justice Navin Chawla remarked.

The Bench in the present matter, was hearing an appeal against the order dated March 24, 2021 passed by the Competition Commission of India (“CCI”) in Re: Updated Terms of Service and Privacy Policy for WhatsApp Users (Suo Moto Case No. 01 of 2021) vide which the Commission ordered a probe into Whatsapp updated privacy policy for breaching Competition Law. 

The investigation ordered u/s 26(1) of the Competition Act, 2002 came against the backdrop of registration of a Suo Moto case by CCI after various media reports reporting of WhatsApp Inc’s updated privacy policy & terms of service as per which WhatsApp users were mandatorily required to accept the terms & conditions to retain their WhatsApp account information. 

With regards to Whatsapp’s policy CCI observed that, “It appears that consent to sharing and integration of user data with other Facebook Companies for a range of purposes including marketing and advertising, has been made a precondition for availing WhatsApp service.”

The Commission also opined that the ‘take-it-or-leave-it’ nature of privacy policy and terms of service of WhatsApp and the information sharing stipulations mentioned therein, merited a detailed investigation in view of the market position and market power enjoyed by WhatsApp. It further took note of Whatsapp’s submission that the 2021 Update did not expand WhatsApp’s ability to share data with Facebook and the said update intended to provide users with further transparency about how WhatsApp collected, used and shared data & observed that the veracity of such claims would be examined during the investigation by the DG.

“The Commission is of the considered opinion that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct, as detailed in this order, in the garb of policy update. A thorough and detailed investigation is required to ascertain the full extent, scope and impact of data sharing through involuntary consent of users.”, the Commission further observed.

Case Title: Whatsapp LLC v. Competition Commission of India & Anr & Facebook Inc v Competition Commission of India