The CCI’s recent approach towards data localisation and data privacy is a paradigm shift which is in conformity with global practices. In August 2020, while dismissing allegations of abuse of dominant position, the CCI observed that misuse of sensitive consumer data may raise antitrust concerns along with data protection issues. However, the most notable development in this regard was the CCI’s Market Study on Telecom Sector (‘Market Study’), which was released earlier this year. Through this study, the CCI found that privacy can take the form of a non-price parameter of competition and that diluting the parameters for privacy protection inadvertently leads to an abuse of dominance, inasmuch as it implies a lack of consumer welfare.
As expected, WhatsApp and Facebook challenged the CCI’s investigation order before the Delhi High Court, their primary contention being that the CCI lacks jurisdiction to take suo motu cognizance of the matter, when the same issues are already pending adjudication before the Supreme Court and the Delhi High Court. The Delhi High Court observed that, while it would have been prudent for the CCI to have waited for the outcome of the aforementioned petitions, the failure to wait would not in itself render the investigation order moot, since there is no inviolable rule that the pendency of suits before other forums would oust the jurisdiction of the CCI. The order of the Single Judge of the Delhi High Court has been challenged and is currently pending before the Division Bench, the outcome of which is likely to be monumental for the competition regime and data privacy in India.
As it turns out, Big Tech, particularly Facebook, has a history of facing antitrust scrutiny. On June 11, 2021, a bipartisan group of lawmakers in the US House of Representatives introduced five antitrust bills to rein in the competitive power of the tech giants—Amazon, Apple, Facebook, and Google. The bills focus on the ability of these companies to acquire new business and extend preferential treatment to their own services. If passed, these bills could force the tech giants to overhaul their business. These bills have come in the backdrop of a sixteen month-long investigation launched by the US House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law against the aforementioned companies. Further, the US Federal Trade Commission recently sued Facebook for illegally maintaining its monopoly and the wrongful acquisition of rival social media apps, Instagram and WhatsApp. Similarly, for its involvement in the Cambridge Analytica scandal, Facebook was fined $5 billion by the Trade Commission. Facebook was also fined $6.5 million by the Canadian Competition Bureau over sharing personal data of users with the third party developers in violation of its own privacy claims.
Apurv Pratap Singh is an associate at Saikrishna & Associates, an Indian law firm.
Hrishav Kumar is a law student at the National University of Study and Research in Law, India.
The views expressed are those of the authors and do not necessarily reflect the opinion of Saikrishna & Associates.