The growth, development and advancement in technology, coupled with the onslaught of the Covid-19 pandemic has led to consumers’ increased reliance on digital and technology-based products and services in every aspect of life. Technology has also permeated into the functioning of various businesses in different markets that also depend on technology to operate. Therefore, to stand out in a highly competitive market, many enterprises provide personalized and customized products and services to their customers- for this, consumer data needs to be collected. This is especially relevant in the context of large-scale tech companies that use this data to gain a competitive advantage. Concerns have been raised about the collection and usage of sensitive consumer data by big tech companies as an invasion of consumers’ privacy. Breach of consumer data and privacy is viewed as a violation of data privacy laws and regulations in particular, but also a violation of technology laws, human rights, and even antitrust law. With the advancement and growth in technology, laws also need to be dynamic, to tackle various issues and concerns that misuse of technology can pose, such as data privacy, and Competition Law is no exception. Using Antitrust/Competition Law to address data privacy concerns has been a matter of discussion for quite a while, with jurisdictions such as Germany combining data privacy and competition law. India is also not too far behind in this development, with the Competition Commission of India (CCI) recognizing access to data as a non-price factor based on which digital enterprises compete, in its 2021 Market Study on the Telecom Sector.
APPEAL BEFORE THE DELHI HIGH COURT
THE MATTER REACHES THE SUPREME COURT
The WhatsApp privacy matter can be considered a watershed moment for the CCI, as it marks the regulator’s foray into the intersection between Competition Law and Data Privacy, and how this law can actually be used to address data privacy violation concerns as well. This intersection and vigilance of antitrust regulators are especially significant in the context of Big Tech companies- the Big Tech companies have access to large amounts of data, (or they have the wherewithal to gain access to such data), based on which they exert their power and influence to benefit themselves, to the detriment of the market and the consumers. With data becoming an invaluable resource, especially for tech-based enterprises, it is only natural for antitrust lawmakers and regulators also to take note of such changes in the market dynamics and incorporate them in the laws and their enforcement- the CCI recognizing data as a non-price factor based on which firms compete in its Market Study on the Telecom Sector of 2021 is a prime example of this. This is when the CCI understood that apart from the conventional and traditional methods of abuse of dominance, such as unfair pricing and denial of market access, among others, low standards for users’ data privacy, will not only be a form of abuse from the perspective of low consumer welfare, but will also be misused by the same entity, or shared with another entity for its own benefits, as was the case with WhatsApp and Facebook (now Meta). This amounts to an exclusionary tactic, as the entity with access to such data will be at an unfair advantage, as compared to its competitors in the market. The WhatsApp case has given a clear indication that the present provisions of the Competition Act, 2002 are somewhat sufficient and flexible enough to raise antitrust concerns emanating from digital markets- however, since technology is dynamic, so are digital markets, and so are tech firms’ anti-competitive tactics and behaviour. Further development, not only in the form of investigations but also in the form of new legislation would also be required.
Author(s) Name: Jai Hindocha (Symbiosis Law School, NOIDA)