In the contemporary economy, data has emerged as a cornerstone, raising significant concerns regarding privacy, security, and consumer rights. A new dimension of competition law is reshaping the regulatory landscape concerning Big Tech's dominance, aiming to balance privacy violations with market fairness.

𝗥𝗲𝗰𝗲𝗻𝘁 𝗖𝗖𝗜 𝗔𝗰𝘁𝗶𝗼𝗻𝘀 𝗔𝗴𝗮𝗶𝗻𝘀𝘁 𝗠𝗲𝘁𝗮

The Competition Commission of India (CCI) recently imposed a hefty penalty of ₹213.14 crore on Meta for anti-competitive practices linked to an unfairly broad scope of data sharing among its subsidiaries. The 2021 update mandated data sharing without an opt-out option, which the commission characterized as a 'take-it-or-leave-it' approach. Furthermore, the CCI directed WhatsApp to address anti-competitive harm by prohibiting the sharing of user data with Meta companies for advertising purposes over five years.

𝗞𝗲𝘆 𝗱𝗶𝗿𝗲𝗰𝘁𝗶𝘃𝗲𝘀 𝗶𝗻𝗰𝗹𝘂𝗱𝗲:

WhatsApp must clearly explain the types of user data shared with Meta companies and their specific purposes.

• Data sharing beyond WhatsApp services cannot be mandatory for accessing the platform in India.

• All users must have an opt-out option via an in-app notification and the ability to review and modify their preferences through a prominent settings tab.

• Future policies must adhere to these principles.

𝗖𝗼𝗻𝗰𝗲𝗿𝗻𝘀 𝗼𝗳 𝘁𝗵𝗲 𝗖𝗼𝗺𝗽𝗲𝘁𝗶𝘁𝗶𝗼𝗻 𝗖𝗼𝗺𝗺𝗶𝘀𝘀𝗶𝗼𝗻

The commission identified two markets affected by these practices:

• OTT messaging apps through smartphones

• Online display advertising in India

It found WhatsApp dominant in both sectors and raised concerns that sharing WhatsApp user data with Meta companies for purposes beyond providing WhatsApp services which includes advertising purposes, creates entry barriers for competitors in the advertising market, violating provisions of Section 4(2)(c) of the Competition Act, 2002. The CCI further upheld that the 2021 update undermines user control over personal data by forcing compliance with its terms, violating Section 4(2)(a)(i) of the Act. These actions signify Meta's abuse of its dominant position, contravening Section 4(2)(e) of the Act.

𝗧𝗵𝗲 𝗖𝗖𝗜: 𝗧𝗵𝗲𝗻 𝘃𝘀. 𝗡𝗼𝘄

The evolution of CCI's approach is evident when comparing past cases with recent rulings:

• In Bharti Airtel v. Reliance Jio (2017), CCI dismissed the case absolving Jio of any allegation of any “penetrative pricing” and being anti-competitive. However, reality reflects smaller players like Aircel and Tata Teleservices have negligible presence in the market and the market of telecommunications is severely consolidated with limited consumer choices.

• The dismissal of allegations against Ola and Uber regarding price-fixing agreements in Samir Agrawal v. Competition Commission of India & Ors. (2018) attracted criticism for CCI’s inability to address complexities in algorithmic pricing.

• However, in Google LLC & Anr v. Competition Commission of India & Ors. (2023), CCI successfully imposed a penalty of ₹1,337.76 crore for abuse of dominant position in the Android mobile device ecosystem.

These recent cases reflect a shift toward recognizing data-related mechanisms and enhancing market oversight. The present order emerges from Meta Platforms Inc v. Competition Commission of India (2022), where the apex court acknowledged CCI's jurisdiction and directed an investigation into WhatsApp’s updated Terms of Service and Privacy Policy.

𝗖𝗼𝗻𝗰𝗹𝘂𝘀𝗶𝗼𝗻

The evolution signifies a shift in approach highlighting the inclusion of the upcoming data-related mechanisms and a better grasp on the workings of the market. The recent steps show the proactiveness of CCI in the regulatory landscape of Big Tech underscoring the government's commitment to consumer welfare as a mandate with an attempt to balance the market competition as a culmination of insights from previous cases. The directives to Meta echo broadly with the broad principles of consented data collection, transparency withdrawal and data minimization mentioned in General Data Protection Regulation (GDPR) of the European Union signaling a regulatory alignment between privacy and competition frameworks with a bottom-line of increased autonomy of consumers in terms of alternatives in market and privacy in data handling.

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