Meta moves NCLAT against ₹213.14 crore CCI penalty over WhatsApp privacy policy

Meta Platforms Inc (formerly Facebook) on Monday moved an appeal in the National Company Law Appellate Tribunal (NCLAT) against an order of the Competition Commission of India (CCI) imposing a penalty of ₹213.14 crore on the tech giant for abusing its dominant position in relation to the implementation of WhatsApp's 2021 privacy policy. .Senior Advocates Kapil Sibal and Mukul Rohatgi, who appeared for Meta and WhatsApp respectively, urged the appellate tribunal to list the case for hearing on January 16. Both Senior Advocates requested that the case be heard by NCLAT Chairperson Justice (retd) Ashok Bhushan considering the importance of the case. They said, "The order has huge implications. We request your lordships to take it up yourself. Since it is going to affect the entire industry, please take it up on January 16.".A coram of Justice Bhushan and Technical Members Barun Mitra and Arun Baroka accordingly agreed to hear the case on January 16..On November 18 last year, the CCI imposed a penalty of ₹213.14 crore on the Mark Zuckerberg-owned Meta for abusing its dominant position through the implementation of WhatsApp's 2021 privacy policy.The CCI also issued cease-and-desist orders to Meta and WhatsApp, directing them to implement specific behavioural remedies within a defined timeline..In January 2021, WhatsApp notified users about updates to its terms of service and privacy policy, effective February 8, 2021. Unlike its 2016 policy, which allowed users to opt out of data sharing with Facebook, the 2021 update made such sharing mandatory. Users had to accept these terms, including expanded data collection and sharing, to continue using the platform.The CCI launched an investigation after receiving information about the alleged violations. It concluded that Meta, via WhatsApp, held a dominant position in the Indian markets for smartphone messaging apps and online display advertising..The CCI found that WhatsApp's 2021 policy constituted a "take-it-or-leave-it" approach, imposing unfair conditions in violation of the Competition Act, 2002. The mandatory acceptance of expanded data sharing undermined user autonomy and represented an abuse of Meta’s dominant position, the Commission held..In the light of this, CCI directed WhatsApp not to share data collected on its platforms with Meta company or its products for five years. WhatsApp was also directed to include a detailed explanation in its policy regarding the user data shared with other Meta companies."This explanation should specify the purpose of data sharing, linking each type of data to its corresponding purpose," the order said.Furthermore, WhatsApp was directed not to make data sharing a pre-condition for users to avail its services in India. The data sharing here would mean data collected for the purpose of advertising..The Senior Advocates were briefed by Advocate Tejas Karia, partner at Shardul Amarchand Mangaldas. Internet Freedom Foundation, a respondent, was represented by Vivek Pandey and Biyanka Bhatia from Sarvada Legal