CCI probe: WhatsApp says will engage with regulator

Social messaging platform WhatsApp has said that the company will engage with the Competition Commission of India (CCI) in the probe on its updated privacy policy and terms of service.

“We look forward to engaging with the CCI. WhatsApp remains committed to protecting people’s personal communications with end-to-end encryption and providing transparency about how these new optional business features work,” a spokesperson at WhatsApp said.

The CCI on Wednesday had directed its investigation arm to conduct a probe into WhatsApp’s updated privacy policy and terms of service on prima facie finding that the firm has contravened competition law provisions through its “exploitative and exclusionary conduct” in the garb of the policy update.

The regulator said that a thorough and detailed investigation was required to ascertain the full extent, scope and impact of data sharing through involuntary consent of users, the regulator said.

The order against WhatsApp LLC and parent Facebook Inc came after the Commission took suo moto cognisance of the matter on considering media reports and the potential impact of the policy and terms for WhatsApp users and the market.

The CCI has directed its investigation arm, the Director General (DG), to complete the investigation and submit a report within 60 days.

It has noted that WhatsApp has updated its privacy policy and terms of service for users. It also noted that users will have to mandatorily accept the new terms and policy in their entirety, including the terms with respect to sharing of their data across all the information categories with other Facebook companies.

“The Commission is of prima facie opinion that the ‘take-it-or-leave-it’ nature of privacy policy and terms of service of WhatsApp and the information sharing stipulations mentioned therein, merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp,” it said.

As per WhatsApp’s submissions, the 2021 update does not expand its ability to share data with Facebook and the update intends to provide users with further transparency about how WhatsApp collects, uses and shares data.

To which CCI said the veracity of such claims would also be examined during the investigation by the DG.

The Commission further said that users, as owners of their personalised data, are entitled to be informed about the extent, scope and precise purpose of sharing of such information by WhatsApp with other Facebook companies.

Besides, the regulator said it is also not clear from the policy whether the historical data of users would also be shared with Facebook companies and whether data would be shared in respect of those WhatsApp users who are not present on other apps of Facebook.

It observed that the users have not been provided with appropriate granular choice, neither upfront nor in the fine print, to object to or opt-out of specific data sharing terms, which prima facie appear to be unfair and unreasonable for WhatsApp users.

“The Commission is of the considered opinion that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct, as detailed in this order, in the garb of policy update,” the regulator added.