The antitrust regulator stated that a detailed investigation is required to ascertain the full extent, scope and impact of data sharing through involuntary consent of users. It directed its investigation arm, the Director-General, to investigate the matter and submit a report within 60 days.
The CCI said that in various places, the policy was indicative and not exhaustive, which suggested that the scope of sharing “may extend beyond the information categories that have been expressly mentioned in the policy.”
“Such opacity, vagueness, open-endedness and incomplete disclosures hide the actual data cost that a user incurs for availing WhatsApp services. 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, that is, Facebook, Instagram, etc,” it added.
The antitrust body said it seems the new policy is looking to also customise, personalise and market the offerings of other Facebook companies. It emphasised that in a competitive market, users would have sovereign rights and control over decisions related to the sharing of their personalised data, but not with WhatsApp. There is no justifiable reason why users should not have control over “such cross-product processing of their data by way of voluntary consent, and not as a precondition for availing WhatsApp’s service.”
It added that WhatsApp sharing data with other companies in a manner “that is neither fully transparent nor based on voluntary and specific user consent” was prima facie unfair to users.
The regulator added that users have not been provided with choice, neither upfront nor in the fine print, to object to or opt-out of specific data sharing terms. This “prima facie appear to be unfair and unreasonable for WhatsApp users,” it said.
The CCI said it gave both WhatsApp and Facebook time to respond to queries. Facebook asked the Commission to exclude the company from being a party to the proceedings, stating that WhatsApp and Facebook are distinct legal entities.
This, the Commission said, is not only evasive but also in “clear non-compliance” with the directions it issued in January. It stated that one of the objectives is to include more information about how WhatsApp partners with Facebook, and that it was surprising that the company was trying to evade comments.
“Facebook is a direct and immediate beneficiary of the new updates and in these circumstances, it is egregious that Facebook is feigning ignorance about the potential impact of the updates altogether and avoiding from providing its perspective thereon. In these circumstances, Facebook is a proper party in the present matter and its presence is required for the effective and complete determination of the issues involved in the present matter,” it said.
A spokesperson from WhatsApp told TNM: “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."
At the time, it said that this will help Facebook and its other products make suggestions for the users, personalise features and content, help them complete purchases and transactions, and show relevant offers and ads across the Facebook Company Products. This includes services such as Facebook itself, Messenger, Instagram, Facebook Shops and more.