What WhatsApp and Facebook want to do is worse than stalking, India's solicitor general tells court

What WhatsApp and Facebook want to do is worse than stalking, India's solicitor general tells court
WhatsApp and Facebook fight the Competition Commission of India's (CCI) decision to launch an anti-trust probe at the Delhi High Court in IndiaUnsplash
  • WhatsApp and Facebook filed a plea in the Delhi High Court for a stay on the Competition Commission of India’s (CCI) plans to conduct an antitrust investigation.
  • The tech giants argue that the issue of data sharing is one of privacy, and does not fall under the purview of India’s competition watchdog.
  • However, India's solicitor general undercut their argument saying the issue is not whether or not data is being collected — the issue is how it is being used.
  • He argued that changes to WhatsApp's privacy policy could give the companies an unfair advantage and ammunition to push competitors out of the market.
India’s competition watchdog doesn’t want WhatsApp sharing user data with its parent company, Facebook. But, the tech giants don’t believe that is the CCI’s place to have an opinion on the matter.

While the Delhi High Court has reserved its order on WhatsApp and Facebook’s challenge to the probe by the Competition Commission of India (CCI), the two sides had some scathing exchanges during the arguments.

The plea filed by WhatsApp and its parent company asserted that since there is already an ongoing case in the Supreme Court over the policy update, the CCI does not need to conduct its own investigation.
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The messaging platform’s 2021 update states that WhatsApp will be sharing user data with Facebook in order to optimise recommendations for their users. The CCI contends that WhatsApp is using its dominant position in the market to force users to share information with its parent company.

India’s competition watchdog believes that ‘excessive’ data collection is getting in the way of creating a healthy competitive environment.

Harish Salve, who argued on behalf of the tech giants, asserted that the issue of whether excessive data collection has any anti-competitive implications is something for the Indian government to decide, not the CCI.

Is the WhatsApp-Facebook connection a matter of privacy or data use?

According to Salve, the CCI’s probe into Facebook and WhatsApp is not a matter of competition but of protection and privacy — which would fall under the government’s purview since they are constitutional issues.

He also argued that since the privacy policy under question is with respect to WhatsApp, there is no point in dragging Facebook into the picture.

However, assistant solicitor general (ASG) Aman Lekhi, hit back saying that the analysis of the data collected by WhatsApp will give even more information about an individual than actual physical stalking.

The company can then use this data to either buy out the competition or make it irrelevant over time. “Facebook comes into the picture because of the privacy policy through which data collection is happening,” Lekhi explained.

According to him, the purpose of data sharing is targeted advertising and customer profiling.

So, when it comes to the issue of privacy versus access to data, the issue is that the data will have exclusionary effects. “The problem is that nomenclature is ‘privacy policy’ but the issues arising are to do with the competition aspect,” Lekhi told the High Court.

Simply put, India's argument is that these changes to WhatsApp's privacy policy could give both the messaging app, as well as Facebook and Instagram, an unfair advantage over its competitors and may drive them out of business.

The Delhi High Court has not issued a verdict on the matter and reserved its judgement. The date for the next hearing has not been announced yet.

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