Response from CCI was sought by a Division Bench of Chief Justice DN Patel and Justice Jasmeet Singh.
The Single Judge, however, refused to interfere with the CCI order merely on the ground that the anti-trust authority should await the outcome of the pending cases before the Supreme Court and the High Court.
The Single Judge further recorded that WhatsApp and Facebook mounted an independent challenge to the Commission’s order without moving an application before the Supreme Court and the High Court for clarification, and hence the same was not maintainable.
Facebook’s stand that an investigation could have been ordered against it was also rejected.
As per CCI, the issue before it is only with respect to the anti-competitive aspect of the policy, and that there was no clash with the courts on issues of privacy.
Senior Advocate Harish Salve appeared for WhatsApp and Senior Advocate Mukul Rohatgi appeared for Facebook.
“Simply put, 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 CCI further took note of the “lock-in” effect of using an app as widely used as WhatsApp, and opined that the scope of sharing information may extend beyond the categories expressly mentioned in the policy.
On the use of personal data of the users, the order states,
“…there appears to be no justifiable reason as to why users should not have any control or say over such cross-product processing of their data by way of voluntary consent, and not as a precondition for availing WhatsApp’s services.”
Such conduct, the CCI concluded appears to be in contravention of Section 4 of the Competition Act, which prohibits abuse of dominance.