WHATSAPP DOMINATING IN COMPETITION COMMISSION OF INDIA?

Updated: Aug 28, 2021

On 24th January 2021 a Suo Moto cognizance was taken by the CCI, passing the order. The order directed an investigation against WhatsApp LLC. & Facebook Inc. upon the allegation of abuse of its power of dominance in the market given in the competition Act 2002 (hereon, ‘The Act’). The said infringement is alleged to be done in its new update of 2021. This action of CCI is fairly another advancement on the past demonstrations of the regulatory body as was seen in the case of Vinod Kumar Gupta vs WhatsApp Inc. In this case CCI refused to intervene by stating the matter of privacy was outside of the regulatory body’s jurisdiction as it falls under the purview of the legislation of information technology. This perspective of CCI changed soon after the market study of telecom sector. The study came on 22nd January 2021 after which the CCI expressed stated Privacy will also be included in competition law under non- price competition. Before long this affirmation a Suo Moto action was taken against the WhatsApp giant. The shift from the perspective on Vinod Kumar case to this Suo Moto action was given in the following manner: the unreasonable data accumulation and flow of the equivalent can prompt the abuse of dominance and will result in an undue advantage in the market. The target of this exposition is to critically analyze the jurisdiction and approach of CCI while determining the matter of WhatsApp in the alleged violation of privacy and competition laws.


USERS BEING FROCED

As likewise expressed in the case of Harshita Chawla vs WhatsApp Inc. the CCI acknowledged WhatsApp to be a dominant Player in the relevant market. CCI in the present matter saw that users are being put against the wall because of the absence of the policy to opt out from accepting the terms and conditions, this was forcing the users to accept the new policy without giving them a reasonable choice this was unlike the 2016 update which had this opt out option this absence clearly shows the infringement of Article 4(2)(a)(i) of the Act. The Article deals with imposition of unfair conditions and terms.


On account of Vinod Kumar against the WhatsApp update of 2016 the CCI, the decision of CCI was largely considered on the fact that the users had the option to opt out from sharing the information with Facebook. In Harish Chawla’s case the inquiry was whether the inclusion of WhatsApp Pay, a digital payment option, is abuse of dominance power in the market the CCI noticed regardless of whether there is a required enrollment in the assistance the utilization of the help is completely up to the user, and the case was considered in favor of WhatsApp. CCI stated unless and until WhatsApp remove the caution of the Users either implicitly or explicitly is will not be constituted as contravention of Article 4(2)(a)(i) of the Act.


The Apex Court of India in the case of Central Inland Water Transport Corporation Ltd. & Anr. vs Brojo Nath Ganguly & Anr [1986 AIR 1571], focused on the significance of ‘reasonableness’ terms and conditions of a contract the court also observed that if the users are put in a position where there is no other alternative other than to assent to the contract the court of law will strike down such contract. This later became the test of ‘user choice’ on which CCI gave its decisions on the question of abuse of dominant power.


POWERS OF CCI


India in the Present time lacks an independent or special data protection law and a regulator of the same. The Personal Data Protection Bill 2019 (PDP bill), this bill incorporates numerous crucial aspects of users consent but is yet to be enacted by government of India, this has permitted WhatsApp to come out with a different privacy policy for the users of Europe including the op out option due to their strict guidelines and rules.


Through the investigation it tends to be unmistakably perceived how the CCI got into the minute details of whether the privacy policy and services and terms were legitimate and reasonable or not. After the investigation of structure, the wordings and the overall effect of the policy and the expectations of the users it was seen that the policy was vague, constrictive and open ended, the issue analyzed by the CCI despite the fact that appropriately depended upon was unnecessary and improper. The issue of data collection is an issue for data protection first and after that only it can be decided whether it is an infringement of competition law or not. If the policy is fair and valid according the data norms it cannot be violative of the competition law.


CONCLUSION


The regulatory body CCI has made it clear it will not let any claim relating to the infringement of privacy policy to get a pass, but one thing that needs to be perceived is that there is a distinction however minute it may be between determining the legal validity of a privacy policy and putting adverse impact on the competition laws.

Due to the shortfall of PDP bill the CCI has shown a clear case of jurisdictional overreach which could have been easily avoided if there was a data protection law in place. CCI for this situation had step into the jurisdiction of data protection laws as evident from the preliminary objection of WhatsApp on CCI’s intervention. The court to keep up with the harmony between the regulators stated CCI will do a follow up only after the primary jurisdiction has done its work.

In the policies where a circumstance is created that if not assenting to a specific policy means end of service by any service provider it should be considered as involuntary or improper consent and should be deemed as invalid consent. The test of user choice is an appropriate and feasible way of determining the abuse of dominant players in the service market.

~SADHNA PARASHER

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