CCI orders probe into WhatsApp's updated privacy policy

The commission has directed the Director General (DG) to cause an investigation into the matter under the provisions of Section 26(1) of the Act. The commission also directed the DG to complete the investigation and submit the investigation report within a period of 60 days from the receipt of this order.

The commission opined that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct 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," it stated.

It noted that WhatsApp has filed its submissions dated 03.02.2021 in two versions viz. confidential as well as non-confidential (filed on 25.02.2021). The confidential versions were kept separately during the pendency of the proceedings. The DG, however, shall be at liberty to examine the confidentiality claims as per law. Further, it is made clear that no confidentiality claim shall be available in so far as the information/ data that might have been used/referred to in this order for the purposes of the Act in terms of the provisions contained in Section 57 thereof.

The commission also clarified that nothing stated in this order shall tantamount to a final expression of opinion on the merits of the case and the DG shall conduct the investigation without being swayed in any manner whatsoever by the observations made herein.

On a careful and thoughtful consideration of the matter, the commission stated that the conduct of WhatsApp in sharing of users’ personalised data with other Facebook Companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users.

"The purpose of such sharing appears to be beyond users’ reasonable and legitimate expectations regarding quality, security, and other relevant aspects of the service for which they register on WhatsApp. One of the stated purposes of data sharing viz. targeted ad offerings on other Facebook products rather indicates the intended use being that of building user profiles through cross-linking of data collected across services," the commission said in the order.

"Such data concentration may itself raise competition concerns where it is perceived as a competitive advantage. The impugned conduct of data-sharing by WhatsApp with Facebook apparently amounts to degradation of non-price parameters of competition viz. quality which results in objective detriment to consumers, without any acceptable justification. Such conduct prima facie amounts to imposition of unfair terms and conditions upon the users of WhatsApp messaging app, in violation of the provisions of Section 4(2)(a)(i) of the Act."