The Competition Commission of India, the country’s competition watchdog, on Wednesday ordered a detailed probe into the new privacy policy of the messaging application WhatsApp LLC, Live Law reported.
Hosted by Facebook Inc, Whatsapp LLC introduced a new privacy policy in early January, which will be implemented from May irrespective of the user’s opinion.
Unlike its previous privacy policy implemented in July 2020, the new policy does not give the user an option to opt for any kind of personal data sharing.
Comparing both the privacy policies, the Commission said, “Users earlier had such control over sharing of their personal data with Facebook, in terms of an ‘opt-out’ provision available for 30 days in the previous policy updates. However, the same has not been made available to users this time. Thus, users are required to accept the unilaterally dictated ‘take-it-or-leave-it’ terms by a dominant messaging platform in their entirety, including the data sharing provisions therein, if they wish to avail their service. Such “consent” cannot signify voluntary agreement to all the specific processing or use of personalised data, as provided in the present policy. Users have not been provided with appropriate granular choice, neither upfront nor in the fine prints, to object to or opt-out of specific data sharing terms, which prima facie appear to be unfair and unreasonable for the WhatsApp users. ”
On January 4, WhatsApp sent notifications to users stating the new terms of service and privacy policies. Soon after, the popular messaging application faced backlash across the world and petitions were filed in India challenging the new policy over the lack of transparency in sharing of personal data with the parent company Facebook Inc.
The key information stated in the notification included how businesses could “use Facebook hosted services to store and manage WhatsApp chats”, how “we partner with Facebook to offer integrations across the Facebook Company Products”.
WhatsApp stated that to continue using the app, users will have to mandatorily agree or accept the news 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 from February 8.
The Commission had taken a suo moto cognisance of the matter on January 19.
After Whatsapp submitted its confidential version, the Commission observed that the response filed by WhatsApp was “not in compliance with Regulation 11 of General Regulations as the same is not signed in terms of the provisions contained”.
Meanwhile, Facebook Inc submitted that they were “separate and distinct legal entities” and any offer made by WhatsApp was its individual responsibility. Facebook had asked for the removal of its name in the case despite the messaging app’s mention about being “partners” with Facebook in their new privacy policy, which was denied by the Commission.
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In its order, the Commission said that WhatsApp has breached the competition laws “through its exploitative and exclusionary conduct, as detailed in this order, in the garb of policy update” which calls for a “thorough investigation” to understand the scope and impact of data sharing through “involuntary consent of users”.
Considering WhatsApp’s policy regarding sharing of users’ personalised data with other Facebook companies, the Commission also observed that it was “neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users”.
The Commission asked WhatsApp to provide its users with further “transparency” about how the application collects, uses and shares their personal data in the new 2021 privacy policy.
The detailed investigation report in the case has to be submitted within 60 days.