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TMI Blog2017 (6) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... 'WhatsApp' which is a proprietary, cross-platform, encrypted instant messaging services for smartphones. It uses internet as a medium to send text messages, documents, images, videos, user location and audio messages to other users of 'WhatsApp' using standard cellular mobile numbers. 3. It is stated that the OP was acquired by Facebook Inc. ('Facebook'), the largest social networking site, on 19th February, 2014 for approximately US$19.3 billion. As per the Informant, the OP had introduced many changes to its privacy policy on 25th August, 2016 whereby the users of 'WhatsApp' have been forced to share their account details and other information with 'Facebook' in order to continue availing the services of 'WhatsApp'. 4. The Informant has submitted that the relevant product market in the instant matter would be 'free messaging app available for various smartphones' and the relevant geographical market would be 'Global'. It is stated that the OP is the most popular messaging app in the world with clear market domination in 109 countries and it is having a market share of 55.6% in the world. It is also stated that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 'opt in' the change in its privacy policy. 8. Besides hearing the learned counsel appearing on behalf of the Informant and the OP on 14.03.2017, the Commission has perused the information and supplementary information filed by the Informant, submissions of the OP and other materials available on record. 9. It is observed that the Informant is primarily aggrieved by the alleged abusive conduct of the OP in compelling the users, through change in its terms of service and privacy policy, to share their account details and other information with 'Facebook' and indulging in the practice of predatory pricing by not charging any subscription fee from its users in violation of the provisions of Section 4 of the Act. As per the Informant, through the aforesaid conduct, 'WhatsApp' and 'Facebook' have been able to enlarge their user base and recouping profits by using the data base of the users for the purpose of targeted advertisements. 10. In order to arrive at a decision in this matter, it is to be determined is whether the OP has infracted the provisions of Section 4 of the Act. However, determination of the said issue requires delineation of relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity provided by consumer communication apps through smartphones is inherently cross-border. As consumers are free to install any app they want, the geographic scope for either demand or supply of consumer communication apps is not limited to any particular area where the consumers acquires connectivity to his/her device. Moreover, the developers distribute similar products to all of their customers regardless of their geographic location. Further, functionality of consumer communication apps through smartphones does not differ depending on the region or country concerned, either in terms of price, functionalities, platforms or operating system. This is consistent with the fact that all consumers with access to internet are in principle free to download and install any app they want, irrespective of their geographic location anywhere in the world. However, competitive conditions, regulatory architecture and players may vary in different countries/regions. Since in the present matter, the allegations of the Informant pertain to the alleged anti-competitive conduct of 'Whatsapp' within the geographic boundary of India and the conditions of competition in the market for instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has alleged that the OP is abusing its dominant position in the relevant market by introducing privacy policy which compels its users to share their account details and other information with 'Facebook'. In this regard, the Commission observes that the data sharing terms of the privacy policy of the OP as updated on 25th August, 2016 relate to sharing of users' 'WhatsApp' account information with 'Facebook' to improve the online advertisement and products experiences available on user's 'Facebook' page. It is noted that the OP provides the option to its users to 'opt out' of sharing user account information with 'Facebook' within 30 days of agreeing to the updated terms of service and privacy policy. Moreover, the OP has submitted that 'Facebook family of companies' will use such information for the purpose of improving infrastructure and delivery systems, understanding how their services are used, securing systems, and fighting spam, abuse or infringement activities. The Commission also finds force in the submission of the OP regarding its users safeguards that all types of 'WhatsApp' messages (including cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Privacy Policy of "WhatsApp ", the users are given an option to delete their "WhatsApp " account at any time, in which event, the information of the users would be deleted from the servers of "WhatsApp ". We are therefore, of the view that it is always open to the existing users of "WhatsApp" who do not want their information to be shared with "Facebook" to opt for deletion of their account......." 17. In the said order the Hon'ble High Court of Delhi had also ruled that if the users opt for completely deleting 'WhatsApp' account before September 25, 2016, the information/data/details of such users should be deleted completely from 'WhatsApp' servers and the same shall not be shared with 'Facebook' or any one of its group companies. However, against the aforesaid order of the Hon'ble High Court of Delhi, an appeal was preferred before the Hon'ble Supreme Court and the matter is still pending before the Hon'ble Supreme Court. In the above backdrop, the Commission is of the view that the allegations of breach of the IT Act, 2000 do not fall within the purview of examination under the provisions of the Act. 18. Further, the Inform ..... X X X X Extracts X X X X X X X X Extracts X X X X
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