Be that as it may, both combinations were approved by the CCI with a caveat that any anticompetitive conduct resulting from data sharing could be taken up under enforcement provisions ( i.e., Section 3 and Section 4) of the Competition Act, 2002 (“Competition Act”). In June 3 and November 4 2020, while analyzing two combinations involving prominent players, the CCI noted that business combinations between entities having access to user data can be analyzed from the perspective of data-backed market power. However, in absence of any concrete accusation or specific information, the case against WhatsApp was dismissed with respect to the allegation of misuse of consumer data. Interestingly, in August 2020, the CCI noted that Facebook and WhatsApp undeniably deal with sensitive data which is amenable to misuse (i.e., through targeted advertisement) and may raise potential antitrust concerns, among other data protection issues. On the allegations of a breach of the Information Technology Act, 2000 (“IT Act”) and right to privacy, the CCI observed that violations of the IT Act do not fall within its purview.
However, in dismissing the allegations the CCI observed that users were provided with the option to opt out of sharing user account information with Facebook within 30 days of the updated terms coming into operation. It was alleged that WhatsApp’s privacy policy, updated in 2016, compels its users to share their data with Facebook.
Particularly with regard to competition cases involving WhatsApp as a party, the paradigm shift in the CCI’s decisional practice is evident.Ĭan the CCI Regulate Data Sharing and Privacy Concerns?Įarlier in June 2017 the CCI examined allegations of abuse of dominance against WhatsApp. The decisions by the CCI in the past few years indicate how the CCI has been slowly acclimatizing itself to these changing markets. The switch from traditional brick-and-mortar business models to rapidly a evolving digital mode of doing business has impacted the way the Competition Commission of India (“CCI”) has been looking at cases involving data privacy and protection issues.
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