The CCI further noted, in para 31 of its decision, that given the pronounced network effects it enjoys, and the absence of any credible competitor in the instant messaging market in India, WhatsApp appears to be in a position to compromise quality in terms of protection of individualised data and can deem it unnecessary to even retain the user-friendly alternatives such as ‘opt-out’ choices, without the fear of erosion of its user base.
Accordingly, an investigation was ordered.
In September 2021, to represent the interests of the public we filed expert information with the DG (the “Information”). In the Information, we submitted that WhatsApp has a dominant position in the relevant market of OTT messaging applications in India, on the basis of its significant user base, and the strong network effects associated with WhatsApp’s platform. WhatsApp’s network effect is strong, because it requires not just a user to migrate to another platform, but also that user’s entire network of friends, family, colleagues, and other acquaintances to migrate to another platform simultaneously. The difficulty of this task puts WhatsApp in a dominant position in the market. Imagine asking your entire family WhatsApp group of 60 aunts, uncles, and grandparents to uninstall WhatsApp, download a new messaging platform, and make an entirely new group!
The CCI has tagged our Information with the main case
This means that we will now be a formal party to the proceedings, and can assist the DG with our expertise at every step of the investigation. We will also be able to submit our comments, inputs and observations to the DG’s report, once the report is finalised. We will also be able to respond to the comments that Facebook and WhatsApp provide to the DG’s final report. And finally, we will be involved in any appellate proceedings that stem from this investigation.
We believe that Competition Law is an underexplored facet of the larger issue of abusive practices by Big Tech companies, and is a necessary aspect of ensuring that large social media platforms act responsibly with user data. It is undeniable that large social media platforms carved out a dominant position in the market, and so it is absolutely essential to ensure that this dominant position is not abused. This is particularly true of WhatsApp since it has such a massive user base in India.
This is our first matter before the Competition Commission of India, and we thank the legal team at Sarvada Legal, led by Mr. Abir Roy, and comprising Mr. Vivek Pandey, for leading the matter. This is a major opportunity for the Indian user of WhatsApp to be heard by the Competition Commission of India and explain how data sharing across Facebook group of companies takes advantage of the Indian users.