CCI tells NCLAT WhatsApp abused dominance through 2021 privacy policy

New Delhi: The Competition Commission of India (CCI) informed the National Company Law Appellate Tribunal (NCLAT) that WhatsApp had abused its dominant position in the Indian messaging market by introducing its 2021 privacy policy on a “take it or leave it” basis, according to Bar and Bench,.

The CCI argued that WhatsApp’s dominance is reinforced by Meta’s scale, resources and the integration of Facebook, Instagram, Messenger and WhatsApp, which creates significant network effects and cross-platform advantages. 

These factors, the commission said, keep users locked into WhatsApp, as switching would require entire contact networks to migrate simultaneously, an obstacle competitors such as Telegram and Signal cannot overcome.

It was further submitted that the 2021 policy compelled users to accept revised terms without meaningful choice, removing the limited opt-out provisions previously available. This, according to the CCI, forced even those who had earlier rejected data sharing to comply in order to continue using the service.

The commission said the policy allowed WhatsApp to collect broad categories of data from individuals, businesses and third parties, and to integrate that information across Meta’s wider ecosystem. Such practices were characterised as exploitative and beyond what was necessary to provide messaging services.

Another contention was that Indian users were denied the same data protection rights available to European users, such as the ability to rectify or erase information, highlighting a disparity in treatment.

The CCI maintained that privacy considerations fall within the scope of competition law, arguing that in digital markets where services are free of charge, data functions as the price paid. A reduction in privacy, therefore, was equated with a fall in service quality.

The case before NCLAT concerns whether WhatsApp’s conduct, in the context of its market position, amounts to an abuse of dominance under competition law.