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The move created severe backlash, prompting the company to postpone the initial date of February 8, 2021, as the date from which the new policy would become active, to May 15, 2021. The matter was also brought to the notice of the courts and the Competition Commission of India (CCI). Even the Central government intervened in the matter, asking WhatsApp to reconsider the new policy. It is therefore highly unusual that the company decided to press ahead with the matter.
Given the number of challenges pending against the new privacy update, WhatsApp brazened it out and ploughed ahead without a course correction. (Photo: Reuters)
In March this year, the CCI made a prima facie finding that WhatsApp has contravened the provisions of the competition law through its exploitative and exclusionary conduct in the garb of the policy update. The commission also initiated an anti-trust investigation against the messaging giant. This prompted both Facebook and WhatsApp to approach the Delhi Court arguing that the matter was sub judice in the High Court as well as the Supreme Court, and so CCI should be away. The single-judge bench presided by Justice Navin Chawla in Delhi High Court dismissed the matter and stated that the courts were not the sole repository of judging the issue at hand, as the CCI (through the Competition Act 2002) was also a competent authority in judging if the new policy updates were exclusionary and exploitative.
Given the number of challenges pending against the new privacy update, the company brazened it out and ploughed ahead without a course correction. A formal statement from the company stated that WhatsApp chats are end-to-end encrypted and that meant that the company could not share chats or locational data with Facebook — its parent organisation. The implication was that no personal information was being shared and therefore the criticism of the policy update was unjustified.
The company’s desperation was evident when, in an affidavit filed before the Delhi High Court, it stated that the data being collected by WhatsApp was far lesser than what was collected by many other apps. Some of the apps mentioned in the affidavit included Zomato, Ola, Arogya Setu, Zoom, and very interestingly, a TV news channel. The move reeks of desperation and is akin to saying, “Yes, I have disdain for data privacy. But then there are others who also have disdain for data privacy.” It is a move that has the potential to backfire and shred the supposed legality of WhatsApp’s arguments.
We will see how things finally pan out on May 15. Hopefully, the company would institute another extension of the date. However, one has to try and figure out the reason behind the desperation shown by WhatsApp and Facebook. There are challenges pending in courts and the CCI, as well as the governmental request and the universal criticism. It would have been expected that the company would be a little more receptive and work out a solution that could benefit all parties. For instance, the company could have created an alternate app for those who do not want to compromise on their privacy. Therefore the desperate nature of WhatsApp’s response is incomprehensible.
What one can only hypothesise is that Facebook wants to bind with WhatsApp through an artificial umbilical cord, as it expects major challenges coming its way in the US and EU courts under multiple anti-trust suits that are pending, which might lead to the company being broken up. The data-sharing modality might make WhatsApp essential to Facebook’s offered services from a technical point of view and prevent such a dissection. Nothing else can explain this unseemly hurry.