Let consumer decide on data sharing with intermediaries: CCI to NCLAT

CCI argued before NCLAT that users must retain the right to share or withdraw data on platforms like WhatsApp as it defended its penalty on Meta for alleged abuse of dominance

The Competition Commission of India (CCI) on Tuesday told National Company Law Appellate Tribunal (NCLAT) that the choice of sharing or not sharing their data with an Internet Intermediary should rest with only the consumer.

 

In its submissions before the NCLAT, the competition regulator said that WhatsApp should not go beyond its scope of collecting data to provide its services.

 

“You can’t collect his (a user’s) medical data to say that, all right, he’s coming on WhatsApp. I know his medical history, and therefore I can share it. No. Why do you need that data? You don’t need that data for the functioning of WhatsApp. These are the conditions which are being provided on this policy,” CCI argued.

   

The NCLAT is hearing WhatsApp and Meta’s plea challenging the CCI order, imposing a fine of ₹213.14 crore on the tech giant for alleged abuse of its dominant position related to WhatsApp’s 2021 privacy policy.

 

The competition watchdog argued that users of the platform such as WhatsApp must be given a choice to opt out of sharing their data even after they once accepted it.

 

“The option to review and modify the choices should be open to every consumer. If the choice has been given that yes, you can share my data then the choice to withdraw that option should also be given,” CCI argued.

 

CCI told the appellate tribunal that the reason for levying the penalty on Meta was because WhatsApp does not maintain its own books of accounts.

 

“The element of the penalty which has been imposed on WhatsApp is through Meta. That’s, that's the standard we have taken,” it said and added, “All their (WhatsApp) revenue is folded into Meta’s books of accounts.”

 

Senior advocate Balbir Singh, advocate Samar Bansal and advocate Manu Chaturvedi appeared for CCI.

 

WhatsApp will file its reply to CCI’s arguments by Thursday and will likely argue the same day. The judgment in the case is likely to be reserved after all arguments are over.

 

CCI on Monday had told NCLAT that no internet intermediary could come close to WhatsApp in terms of revenues as well as the assets the company had.

 

While presenting its side of the arguments, it told the bench of Justice Ashok Bhushan (chairperson) and Member (Technical) Barun Mitra that the main reason for the acquisition of WhatsApp by Meta (then Facebook) was its huge user base.

 

WhatsApp had earlier told the appellate tribunal that the CCI overstepped its jurisdiction by ruling on data privacy issues rather than competition issues.

 

In January, the appellate tribunal had said that the five-year ban by CCI may lead to the collapse of the business model of WhatsApp since it is a free platform.

 

“The ban of five years, which was imposed in paragraph 247.1 (of CCI order), may lead to the collapse of the business model which has been followed by WhatsApp LLC. It is also relevant to notice that WhatsApp is providing WhatsApp services to its users free of cost,” the order had said.

 

At the same time, the NCLAT refused to stay the fine of ₹213.14 crore imposed by CCI and told Meta, which owns WhatsApp, to deposit 50 per cent of the fine amount within two weeks for a stay to be affected.