The bench added that it is the "opt-out" option that primarily led to CCI rendering its conclusion that the 2016 policy did not violate the Competition Act. "The 2021 Policy, however, places its users in a 'take-it-or-leave-it' situation, virtually forcing its users into agreement by providing a mirage of choice, and then sharing their sensitive data with Facebook Companies envisaged in the policy," it said. The division bench said the 2016 privacy policy provided WhatsApp users the option to "opt-out" of sharing user account information with Facebook within 30 days of agreeing to the updated Terms of Service and Privacy Policy. It also said that the single judge has also taken into consideration the relevant factors before observing that concentration of data in the hands of WhatsApp may raise competition concerns, thereby resulting in the violation of provisions of the Act.
The division bench, in its 49-page judgment, said it was evident that the CCI has arrived at its decision that a prima facie case of violation of provisions of the Competition Act, 2002, has been made out against WhatsApp and Facebook, that would require an investigation by the Director General of CCI. In January last year, the CCI on its own had decided to look into WhatsApp's updated privacy policy based on news reports regarding the same. In April last year, a single judge of the high court had refused to interdict the investigation directed by the CCI on the petitions moved by WhatsApp LLC and Facebook Inc. While the judgement was pronounced by the division bench on Thursday, it was uploaded on the court's website on Friday.
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