WhatsApp’s data privacy policy and terms of service announced globally on 04.01.2021 for its users in India have attracted attention of the Central Government and even the fair market regulator, the Competition Commission of India (“CCI”) since the very beginning.
Vide its recent order dated 18.11.2024 , CCI has imposed a penalty of INR 213.14 crores ( INR 2.13 Billion) on Meta ( through WhatsApp) for abusing its dominant position in the first relevant market for OTT messaging apps through Smartphones in India, by imposing unfair terms of service on its users ( in violation of Section 4(2) (a) (i) of the Competition Act, 2002 (the Act), and leveraged the position of dominance in the said relevant market to protect its position in the second relevant market for online display in India , in violation of Section 4(2) (e) of the Act , besides by sharing of WhatsApp’s users’ data between Meta companies for purposes other than providing WhatsApp services , created entry barriers for the rivals of Meta , thereby denying market access in the display advertisement market , in contravention of Section 4(2) (c) of the Act.
BACKGROUND OF CCI ORDER-
How the probe was initiated –
In my article “Privacy puzzle -WhatsApp Diktat and Competition” published in FINANCIAL EXPRESS in India on 01.02.2021 , based on the market power enjoyed by WhatsApp and Meta in India and the exploitative terms of usage offered under the new data privacy policy , which did not give any option to users , and the CCI market study report on Telecom sector , published around the same time, which recognized that “data privacy can take the form of non-price competition and abuse of dominance can lower privacy protection”, I had premonished that “India may soon become the next battleground against the data monopolies of the Silicon Valley”!
As if based on my above article, other similar media reports and two prompted complaints filed by an anonymous law student ( Prachi Kohli) and a hitherofore unheard NGO, Internet Freedom Foundation, (I believe so based on my experience of shadow complainants piggy jumping on my ideas in the past, e.g. in the BCCI case) , CCI took suo moto cognizance and vide its order dated 24.03.2021[1] under Section 26(1) of the Act, directed its investigative arm, the Director General (DG) to investigate the prima facie case of abuse of dominance by WhatsApp for its exploitative and exclusionary conduct in the garb of its said new data privacy policy .
The CCI’s above prima facie order dated 24.03.2021 was challenged by WhatsApp through writ petitions[2] filed by both WhatsApp & Facebook before the Hon’ble Delhi High Court (“DHC”), inter alia raising the plea of res judicata. WhatsApp contended that the CCI had previously closed an investigation concerning its 2016 policy based on similar allegations. However, the DHC vide its judgment dated 25.08.2022[3] rejected this plea, observing that the “take it or leave it” condition present in the 2021 policy was absent in the 2016 policy. The DHC, therefore, dismissed the writ petition. WhatsApp challenged the DHC’s order before the Hon’ble Supreme Court of India. However, the Supreme Court, by its judgment dated 14.10.2022[4], dismissed the Special Leave Petitions (SLPs) filed by Meta & WhatsApp, upholding the DHC’s decision.
Accordingly, the DG submitted the Investigation Report (confidential as well as nonconfidential versions) on 12.01.2023 along with case records.
DG Investigation Report-
Relevant Market
The DG delineated two relevant markets during the investigation: (1) the market for Over-the-Top (OTT) messaging apps through smartphones in India, and (2) the market for online display advertising in India.
The DG emphasized that OTT messaging apps possess unique features, differentiating them from traditional communication services like text messaging and voice calls. Based on physical characteristics, pricing, and consumer preferences, the DG concluded that OTT messaging apps form a distinct market. Proprietary apps like FaceTime and iMessage, exclusive to Apple devices, were excluded from this market. The DG further noted that the conditions for OTT messaging apps in India are consistent in terms of price, functionality, and operating system compatibility, which led to the geographic market being defined as India. On the second relevant market, the DG argued that online display advertising is distinct from offline advertising due to its cost-effectiveness, measurability, and conversion-focused nature. It was also distinguished from search advertising, which serves different purposes. Given the differences in competitive conditions and regulatory structures in India compared to global markets, the DG concluded that the second relevant market is the “market for online display advertising in India.”
Dominance
The DG found that Meta operates through WhatsApp and Messenger in the OTT messaging apps market in India. Considering its financial resources, active user base, direct network effects, strong lock-in effects, absence of countervailing buying power, and control over vast amounts of data, the DG concluded that Meta is dominant in this market.
Abuse of Dominance
Take it or leave it
The DG found that WhatsApp’s 2021 privacy policy update created a “take-it-or-leave-it” situation for users by removing the 30-day opt-out option, forcing users to accept the terms or lose access to services. The update mandated data sharing with Meta companies, with limited deferral options, which disadvantaged Indian users compared to their European counterparts. The DG concluded this violated Section 4(2)(a)(i) of the Competition Act by imposing unilateral, non-negotiable terms.
The DG also highlighted WhatsApp’s extensive and disproportionate data collection, including personal, behavioral, and financial transaction data, much of which was unnecessary for providing messaging services. This data was shared with other Meta companies for various purposes, and the DG found this excessive collection violated Section 4(2)(a)(i).
Data Collection and Sharing
The DG observed that while some basic data collection by WhatsApp is necessary to provide its services, a comparative analysis with competitors revealed that WhatsApp’s collection of a wide range of information is not essential for instant messaging. This excessive data collection and sharing were deemed to impose unfair conditions, violating Section 4(2)(a)(i) of the Act.
Additionally, the DG observed that Meta’s data practices created significant entry barriers for new competitors, thereby denying market access in violation of Section 4(2)(c).
Denial of Market Access and Leveraging
The DG concluded that WhatsApp’s dominance was leveraged to strengthen Meta’s position in other markets, such as online display advertising, resulting in exclusionary effects. The extensive user data collection and sharing among Meta companies were found to act as an entry barrier for new competitors, amounting to denial of market access in violation of Section 4(2)(c) and leveraging WhatsApp’s dominant position in the OTT messaging market to protect Meta’s share in online display advertising, contravening Section 4(2)(e) of the Act.
The DG further concluded that Meta leveraged its dominant position in the OTT messaging market through WhatsApp to protect its share in the online display advertising market, contravening Section 4(2)(e) of the Competition Act.
Proceedings before the CCI
Preliminary Objections -Jurisdiction of CCI questioned
Meta Platform, Inc. & WhatsApp LLC (“opposite parties”) raised two preliminary objections, firstly, that the DG investigation report on abuse of dominance is solely based on alleged breach of data protection and privacy laws, specifically examining whether WhatsApp obtained proper consent for the 2021 Privacy Policy Update and whether its data collection practices are excessive or unfair. They argued that these issues fall under data protection and privacy law, and these issues were (then) being adjudicated by the Hon’ble Supreme Court and the Hon’ble Delhi High Court, and any decisions there would be binding on the DG and the CCI. Secondly, it was pointed out that despite the CCI clarifying before the DHC that it would focus solely on the competitive aspects of the 2021 Update, the DG exceeding its mandate analyzed data protection and privacy issues. The opposite parties also highlighted a jurisdictional conflict, asserting that the CCI lacks jurisdiction to address data protection and privacy issues as identified by the DG in its Report as it is governed by specialized statutes like the Digital Personal Data Protection Act, 2023 (DPDP Act), the Information Technology Act, 2000 (IT Act), and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (Privacy Rules). Therefore, in view of the foregoing it was submitted that the DG’s findings on user consent and data collection relate to data protection and privacy, are outside the CCI’s purview, and are pre-emptive given pending adjudications.
The CCI rejecting WhatsApp’s preliminary plea observed that “in data-driven markets, the role of competition authorities is significant as data has emerged as a critical parameter of competition and a source of market power. Digital platforms that rely heavily on data often have the potential to gain substantial market power due to the unique characteristics of data, such as its ability to be
collected, processed, and utilized on a massive scale. Such platforms can leverage their extensive data repositories to create barriers to entry, exclude competitors, or engage in discriminatory practices, thus stifling competition and reducing consumer welfare in the long run. Therefore, the role of competition authorities in such markets is indispensable. Data-related practices can lead to different types of legal violations that fall under multiple statutes viz. data protection or consumer protection or competition laws, etc. reflecting the growing complexity of the digital economy. Data protection and competition law, have distinct intervention tools to address data-related concerns, and each serves a unique purpose. Data-related practices might violate data protection laws, but they can also be seen as the imposition of unfair terms under competition law. This overlap creates a point of intersection between data protection and competition law, with each addressing different aspects of harm. Further, while data protection laws primarily focus on the processing of personal data, competition law can also intervene when non-personal but competition-sensitive data is abused. In this context, it is important to recognize that the concept of “user data” in digital platforms encompasses not just personal data, but also anonymized and aggregated data, which may not always align with traditional definitions of personal data. This broader view is crucial when analysing data-related competition concerns in digital markets. Consequently, data-related practices can sometimes trigger concerns that require simultaneous intervention from multiple branches of law”.
Further, while stressing upon the complementary nature of the data protection and competition laws, CCI observed that “Data protection laws apply universally to all entities handling personal data, ensuring the privacy and rights of all individuals. In contrast, Section 4 of the Act, specifically applies only to dominant entities, imposing additional obligations to prevent abuse of market power. There is no inherent conflict or repugnancy between the two statutes, as the Act supplements data protection regulations by placing heightened responsibilities on dominant firms, ensuring they do not leverage their market position in a manner that distorts competition or harms consumer welfare.”
Finally, the CCI, relying upon the observations made by the Division Bench of the Delhi High Court vide its judgment dated 25.08.2022[5] (which was also upheld by the Supreme Court vide its order dated 14.10.2022[6] , when it refused to intervene and dismissed the SLPs filed by Meta and WhatsApp ) dismissing the challenge to the initial prima facie orders under Section 26(1) of the Act , held that “the jurisdiction of the Commission must be viewed in the light of its statutory mandate under the Act, which aims to prevent anti-competitive practices, promote competition, and protect consumer interests. As observed by the Courts, the Commission’s jurisdiction operates independently and concurrently with other authorities, including Constitutional Courts, even in instances where there may be a potential overlap in the subject matter of inquiries. The objectives of competition law, as set out in the Act, focus on promoting economic efficiency. Mere existence of parallel proceedings or the involvement of other authorities does not strip the Commission of its jurisdiction. Thus, the Commission retains the authority under the Act, irrespective of any ongoing legal proceedings in other forums, reaffirming its role as the market regulator and guardian of competition principles”. Accordingly, CCI concluded that the exercise of its jurisdiction in the present matter is in full compliance with its averments before the Hon’ble Delhi Court as well as the Hon’ble Supreme Court.
Relevant Market-
The opposite parties contested DG’s market delineations, proposing a broader market definition encompassing a wider range of digital services. WhatsApp argued that the “market for user attention” is the relevant market which includes social networking, messaging, gaming, content sharing, and entertainment services, all of which it claimed are substitutable from a user perspective. In support, WhatsApp pointed to user behavior during its 2021 outage as evidence, where users switched between platforms like Signal and Telegram, demonstrating substitutability. WhatsApp also highlighted the high level of multi-homing among Indian users, challenging the narrow definition of OTT messaging apps. It proposed a broader market of “consumer communication services,” including SMS, MMS, RCS, email, and voice services, arguing these are functionally substitutable and similarly priced. WhatsApp also objected to device segmentation, claiming that most communication services are cross-platform and criticized the DG for excluding rivals like Koo, Slack, and Discord without analyzing user substitution patterns. Furthermore, WhatsApp argued against limiting the geographic market to India, asserting that digital markets operate globally with similar functionalities and global product strategies. Meta also criticized DG’s delineation of online display advertising, contending that both online and offline advertising services are interchangeable and that technological innovations have blurred the lines between search and display advertising, further supporting their substitutability.
The CCI, in evaluating the relevant market for OTT messaging apps, rejected the broad definition based on “user attention” affirming that platforms like WhatsApp, Facebook, and Netflix serve distinct needs for communication versus entertainment and are not interchangeable. The Commission emphasized that competition law applies to substitutable products, and although “user attention” is valuable for advertisers, it does not form a separate market. WhatsApp’s temporary user shift during outages was viewed as a non-substitutive adjustment. The Commission further differentiated OTT messaging apps, which are low-cost and closed systems, from traditional services like SMS, which involve charges and are platform-agnostic. It also dismissed the notion of substituting video conferencing tools like Zoom for OTT messaging apps. The Commission confirmed the geographic market as India, agreeing with the DG’s delineation of OTT messaging apps as a distinct market in the country.
Similarly, regarding the second market for online display advertising in India, the CCI after considering the responses received from third parties[7] , the jurisprudence of other antitrust agencies[8] differentiated between online (and Offline as well) display and online search advertisement markets.
CCI observed that Offline advertising primarily raises awareness and lacks immediate user interaction, while online advertising, especially search ads, drives direct consumer actions with higher cost efficiency, real-time tracking, and a better return on investment (“ROI”). Online advertising also allows for more targeted campaigns, especially for younger, tech-savvy audiences. The Commission concluded that these differences justify treating online and offline advertising as separate markets. It also agreed that search and display advertising are distinct due to their functional and strategic differences.
The Commission ultimately confirmed the DG’s delineation of online display advertising in India, reflecting the unique dynamics of the digital advertising space and held that the two relevant markets under examination were- (1) the market for Over-the-Top (OTT) messaging apps through smartphones in India, and (2) the market for online display advertising in India.
Dominance
The OPs objected to the finding of the DG holding Meta as dominant in both relevant markets, relying on download data for Telegram and Signal, asserting that the rapid increase in their user bases demonstrates the absence of market dominance by any single firm. They also cited a submission by Telegram to the DG, stating that it has not faced any barriers to entry or expansion in India. Further, the OPs argued that the DG did not contact users of WhatsApp or other competing apps to assess their dependence or the extent of countervailing buyer power, pointing out that users can easily multi-home.
The OPs contended that the enterprise’s asset size is not a determinative factor for dominance in technology markets, as the costs of entering and operating in this space are low, requiring neither significant capital investment nor large-scale operations. They also criticized the DG’s report for overlooking the dynamic nature of zero-priced digital markets, failing to conduct economic analysis to determine dominance, ignoring high levels of innovation, and disregarding the role of multi-homing and the ability of new entrants to quickly gain users.
The Commission, however, analyzed each relevant factor out of the 13 factors, including market share, listed under Section 19(4) of the Act and determined that Meta held a dominant position. Considering market share, it noted that in digital platforms, market position can be effectively assessed through user engagement, as frequent user interaction is a key success factor. The CCI after examining the data on the Daily Active Users (DAU) and Monthly Active Users (MAU) of both WhatsApp and Facebook Messenger during the period 2016 to May 2021 and the data from a reputed Global Survey[9] (relied upon by the DG) underscored strongest market position of both WhatsApp and Meta.
The Commission observed that the primary entry barriers for new entrants in the OTT messaging market are strong network effects, status quo bias, and the challenge of reaching a critical mass of users. While users may multi-home across various messaging platforms, their activity remains concentrated on the platform with the largest user base, creating significant consumer dependence. Additionally, Meta’s vast financial resources allow it to outspend competitors in research and development, marketing, and acquisitions, thereby maintaining its market-leading position.
Based on these findings, the Commission concluded that Meta, operating through WhatsApp, is dominant in the “market for OTT messaging apps through smartphones in India”. This dominance is further reinforced by Facebook Messenger’s presence in the same market.
Abuse of dominance –
Take it or leave it
WhatsApp argued that the 2021 update did not expand its data collection or sharing capabilities and that accepting the update was not mandatory for users to continue using the platform to communicate with friends and family. It also asserted that low switching costs indicated users were not locked in and that the absence of an opt-out option ( in its 2016 policy) was a common industry practice.
However, the CCI highlighted a significant difference between the 2016 privacy policy, which allowed users to choose whether to share their data with Facebook, and the 2021 policy, which made data sharing with Meta mandatory. The Commission rejected WhatsApp’s arguments, noting that strong network effects deter users from switching to alternatives and that industry practice is not a valid justification for a dominant player. It held that the mandatory terms of the update were inherently coercive, prioritizing the company’s commercial interests over user autonomy and privacy, thereby amounting to an abuse of market power.
Data Collection and Sharing
The OPs contested DG’s findings, arguing that the 2021 update did not expand WhatsApp’s ability to collect data and does not expand its ability to share data with Meta but was intended to provide users with additional transparency regarding data practices and provide additional information about how optional business messaging features work and when they become available to users. WhatsApp also claimed that the 2021 update merely sought user acknowledgment of the updated privacy policy, and that its data-sharing practices had already been disclosed in the 2016 update.
However, the Commission, after considering various categories of information collected by WhatsApp from users[10] and various categories of data collected from third parties[11] noted that the 2021 update continued to use vague, broad and open-ended categories of information being collected, making the scope of data collection and sharing with Meta companies indeterminable. It found WhatsApp’s claim problematic, as the use of non-exhaustive lists in the policy suggests that WhatsApp retains the flexibility to expand the scope of data collection at any time and justify it as being covered under previous policies. The Commission observed that Such opacity and ambiguity in data policies is inherently unfair to users and raises significant competition concerns. Dominant platforms like WhatsApp, by virtue of their market power, can impose these broad terms without providing users a clear understanding of the true cost of using the service in terms of data sharing. This lack of transparency prevents users from making informed decisions and places them at a disadvantage, as they are unable to fully comprehend the extent of data being collected
and shared or to seek alternatives that better protect their data…. Moreover, the ability of WhatsApp to unilaterally alter or interpret the scope of data collection without an effective choice for the user creates a situation where the platform can continuously increase its data capture without any real accountability. .. Users in digital markets generally do not possess the same level of information or bargaining power as the platforms they engage with. WhatsApp’s opaque policies take advantage of this information asymmetry, resulting in users accepting lopsided ‘take-itor-leave-it’ policies. Vague and ambiguous terms of WhatsApp’s 2021 Update allow Meta to exploit its dominant position and prevent effective competition by limiting user awareness and choice. Such practices are not only detrimental to consumer welfare but also undermine the competitive dynamics of digital markets, where transparency and effective choice is essential for ensuring fair competition and informed consumer decision-making.
The Commission also noted the difference between the WhatsApp’s Policy Updates for rest of the World and European Region and those in India and observed that its Updates in the former provided more transparency than found in India (which was justified to in strict compliance with the Europe’s General Data Protection Regulations (GDPR) and that there was scope and feasibility for providing more transparency and choice for users in India. CCI also agreed with observations in the DG Report that cookies and location information did not seem to be essential to provide messaging app services, though WhatsApp tried to justify these to improve user experience.
In relation to sharing of information with other Meta companies[12], admitted by WhatsApp during the investigation and justified as being proportionate and not arbitrary being necessary to provide services in relation to safety , security and integrity , the CCI found that the sharing of data within Meta group goes beyond what is necessary to provide core WhatsApp services, indicating that user data is being leveraged for commercial purposes unrelated to the primary functionality of the platform. The aggregation of data from multiple sources provides Meta with insights that smaller competitors cannot replicate, potentially blocking new entrants and closing the market in favour of established firms. CCI also observed that “Even if WhatsApp currently claims to share only limited data with Meta, the 2021 policy grants it the unilateral right to expand data sharing at any point, without giving any choice to users. This creates a precarious situation where WhatsApp can begin sharing more data with Meta whenever it chooses, making the policy not only a matter of anti-competitive conduct but also raising concerns over user autonomy and transparency.
CCI, referring to the several cases decided in European Commission[13] , and in US[14] and in Australia[15] noted that privacy is being increasingly recognized as a critical non-price parameter of competition in the context of digital services , where many offerings are provided at zero monetary cost and held that the “sharing of information between WhatsApp and Meta as mandated by the 2021privacy policy compels users to either accept broad and ambiguous data sharing terms or risk losing access to essential features and functionalities of the platform (at least till 07.05.2021). This coercive approach leverages WhatsApp’s dominance to impose data-sharing conditions that primarily benefit Meta’s business interests. Such conduct demonstrates the imbalance of power, where users are deprived of meaningful autonomy over their data and are pressured into accepting
terms they cannot practically negotiate or refuse. The data-sharing arrangement without user choice is also fundamentally unfair as it degrades the quality of service by diminishing privacy standards, which are an essential non-price parameter of competition. This combination of coercive imposition and unfair reduction in service quality underscores the exploitative nature of WhatsApp’s conduct, which harms both consumer welfare and market competition”.
Consequently, the Commission concluded that the 2021 policy update by WhatsApp on a “take-it -or-leave it” basis constitutes an imposition of unfair condition under the Act, as it compels all users to accept expanded data collection terms and sharing of data within Meta Group without any opt out option and given the network effects and lack of effective alternatives, the 2021 Update forces users to comply, undermining their autonomy, and constitutes an abuse of Meta’s dominant position. Accordingly, the Commission found that Meta (through WhatsApp) has contravened Section 4(2)(a)(i) of the Act.
Denial of Market Access and Leveraging by Meta
Before the CCI, Meta countered that the 2021 update did not expand its access to user data and argued that intra-group data sharing is a standard practice. It also asserted that the online display advertising market is highly competitive and claims benefits for consumers and advertisers through efficiency and pro-competitive effects. Meta further argued that the Investigation Report did not find it dominant in the (second) market for online display advertising.
Regarding vertical integration, the Commission highlighted that Meta’s extensive ecosystem of platforms enables it to collect vast amounts of user data, strengthening its advertising business, driving revenues, and further cementing its dominant position. It also noted that in zero-priced digital markets, the notion of “zero price” is a misnomer, as users provide non-monetary consideration in the form of their personal data. Lastly, the Commission found that the extent of multi-homing claimed by the OPs was overstated, with most users remaining primarily active on Meta’s applications. The Commission, after considering submissions from third parties, observed that platforms like Facebook and WhatsApp collect extensive user data, enabling Meta to deliver highly targeted advertisements and attract advertisers. It noted that Meta holds a leading position in the display advertising market, evident from the number of ad-impressions sold in India. The integration of WhatsApp’s data with Meta’s advertising ecosystem enhances targeting capabilities, creating a competitive advantage for Meta that rivals cannot replicate, thereby entrenching its dominance and raising entry barriers. This integration, coupled with Meta’s data-driven insights, contributes to a feedback loop that increases switching costs for advertisers, discouraging them from moving to rival platforms. The Commission held that Meta’s contention of economic justification for data integration did not meet the high threshold required. Moreover, it noted that dominance in the market where denial of access is alleged is unnecessary, particularly in multi-product platforms. Meta’s dominant position in the OTT messaging market allows it to collect and leverage vast amounts of user data, facilitating highly targeted advertisements and denying market access to competitors. Accordingly, the Commission concluded that (a) sharing WhatsApp user data among Meta companies for purposes beyond WhatsApp’s core service creates an entry barrier for the rivals of Meta and thus , results in denial of market access in the display advertising market, in contravention of Section 4(2)(c), and (b) Meta has engaged in leveraging its dominant position in the OTT messaging apps through Smartphones to protect its position in online display advertising market, which was in contravention of Section 4(2)(e) of the Act.
Towards the end, referring to the decision of the NCLAT dated 29.03.203 in the case of Google LLC. Vs Competition Commission of India, and another decision in European Union[16], WhatsApp referred to the failure of DG to include an effect-based analysis in its investigation report. The Commission, rejecting the objection, observed that “even under an effect-based doctrine, for an action to be deemed abusive, it is not necessary for anti-competitive effects to have already
materialized. The potential impact and the likelihood of effects on the state of competition are sufficient. If there is a likelihood of anti-competitive market foreclosure, the conduct may be classified as abusive even if the harmful effects have not yet fully developed. This is inferred from not only the interpretation of the provisions of the Act but also the global jurisprudence in this regard. The CJEU decision in TeliaSonera relied upon by WhatsApp also corroborates the same.
Further, referring to the statutory architecture with the underlying objectives of the Act[17] , the Commission noted that it was empowered to issue peremptory interim orders when an act in contravention of the provisions of the Act is about to be committed.
CCI Order & Remedies
The CCI in exercise of its powers in terms of the provisions of Section 27(a) of the Act, directed both Mata and WhatsApp to cease and desist from indulging in anti-competitive practices
that have been found to be in contravention of the provisions of Section 4 of the Act, as aforesaid .
Further, in exercise of its powers under Section 27(g) of the Act, CCI directed both OPs to implement the following directions :
- WhatsApp will not share user data collected on its platform with other Meta Companies or Meta Company Products for advertising purposes, for a period of 5 (five) years from the date of receipt of this order. After expiry of the said period, the directions at para 247.2 (except para 247.2.1) will apply mutatis mutandis in respect of such sharing of data for advertising purposes.
2.With respect to sharing of WhatsApp user data for purposes other than advertising:
(i) WhatsApp’s policy should include a detailed explanation of the user data shared with other Meta Companies or Meta Company Products. This explanation should specify the purpose of data sharing, linking each type of data to its corresponding purpose.
(ii) Sharing of user data collected on WhatsApp with other Meta Companies or Meta Company Products for purposes other than for providing WhatsApp services shall not be made a condition for users to access WhatsApp Service in India.
3. In respect of sharing of WhatsApp user data for purposes other than for providing WhatsApp Services, all users in India (including users who have accepted 2021 update) will be provided with:
a) the choice to manage such data sharing by way of an opt-out option prominently through an in-app notification; and
b) the option to review and modify their choice with respect to such sharing of data through a prominent tab in settings of WhatsApp application.
4. All future policy updates shall also comply with these requirements.
PENALTY– In exercise of its powers under section 27(b) of the Act and after duly considering all aggravating and mitigating factors and the submissions made on the “relevant turnover”, the CCI imposed a penalty of Rs. 213.14 crore only (Rs. Two Hundred Thirteen Crores and Fourteen Lakhs only), upon Meta for violating Section 4 of the Act.
COMMENT – This order of the CCI is a landmark decision being the first of its kind in India on the interplay between data privacy and competition laws. The Commission can be credited with having considered each and every submission made by both the opposite parties in a fair and transparent manner besides duly considering the foreign jurisprudence available on this issue relating to data-driven digital markets. The remedies suggested are also in sync with the international best practices followed in other jurisdictions where such issues have been settled. The order is most likely to be challenged by way of appeal before the NCLAT and then if required before the Supreme Court.
#WhatsApp # Facebook # Meta #Google #dataprivacy #competitionlaw
[1] Along with its orders dated 12.10.2021 under Section 26(1) clubbing the suo moto case no. 30/2021
[2] W.P. No. 4378/2021 & 4407/2021 filed by WhatsApp and Facebook, respectively, before Single Bench of Delhi High Court dismissed vide detailed judgment dated 22.04.2021. This decision was challenged by both before Division Bench of the High Court vide LPA No. LPA No.163/2021 & 164/2021 filed by Meta & WhatsApp respectively.
[3] LPA No.163/2021 & 164/2021 filed by WhatsApp & Facebook respectively.
[4] SLP No.17121/2022 & 17332/2022 filed by Meta & WhatsApp respectively
[5] LPA No.163/2021 & 164/2021 filed by Meta & WhatsApp respectively.
[6] SLP No. 17121/2022 & 17332/2022 filed by Meta & WhatsApp respectively.
[7] Snap, Ally, Google, Inmobi, Twitter, Taboola, LinkedIn, Amazon, Pinterest etc.
[8] European Commission (EC), Australian Competition and Consumer Commission (ACCC), French Competition Authority, US FTC , UK CMA etc.
[9] Statista Global Consumer Survey in respect of top 10 most used messenger services in India (Refer to Table below para 71 of the CCI Order dated 18.11.24.)
[10] Usage and log information, location information, Cookies.(Refer to Para 156 of CCI order )
[11] Information others provide about users (phone number, name, age and such personal details ) , User reports , Business on WhatsApp, Third party service providers, Third -party services . ( Refer to Para 157 of CCI order).
[12] Facebook Ireland Ltd., Facebook Payments Inc, Facebook Payments International Limited, Facebook Technologies, LLC, Facebook Technologies Ireland Limited, WhatsApp, WhatsApp Ireland Limited, Novi Financials, Inc. and its affiliated, global Novi entities and Facebook Pagamentos do Brasil Ltds.
[13] Facebook/ WhatsApp merger decision dated 03.10.2014 in Case No. COMP/M.7217, Microsoft/ LinkedIn merger decision dated 06.12.2016, TomTom/Tele Atlas and Apple/ Shazam merger by European Commission. Facebook decision by German Federal Cartel Office (FCO) i.e., Bundeskartellamt to conclude that there is a consensus behind the idea that ‘competition on privacy’ can constitute an element of competition.
[14] Google/ DoubleClick merger assessment by US FTC.
[15] Australian Competition and Consumer Commission’s ‘Digital Platforms Inquiry’ of June 2019.
[16] Court of Justice of the European Union’s (CJEU) decision in Konkurrensverket v. TeliaSonera Sverige AB (TeliaSonera) wherein the court observed that, “in order to establish whether such a practice is abusive, [the] practice must have an anticompetitive effect on the market, but the effect does not necessarily have to be concrete, and it is sufficient to demonstrate that there is an anticompetitive effect which may potentially exclude competitors who are at least as efficient as the dominant undertaking” (emphasis added).
[17] Section 4 read with Section 32 and 33 of the Act.
