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of <h1>NCLAT stays CCI's five-year ban on WhatsApp Meta data sharing for advertising, upholds other directions</h1> The NCLAT stayed the CCI's five-year ban on WhatsApp and Meta from sharing user data for advertising purposes, finding it could collapse their business ... Prayer for stay of effect and operation of the impugned order - jurisdiction of Competition Commission of India (CCI) to initiate suo moto proceedings against WhatsApp LLC and Meta Platforms for the 2021 update of WhatsApp's Privacy Policy under the Competition Act, 2002 - breach of Section 4 of the Competition Act, 2002 - HELD THAT:- The decision of Supreme Court [2022 (10) TMI 1269 - SUPREME COURT] clearly supports the submissions of the CCI that suo moto proceeding initiated by the CCI was not to be interfered with. However, the Hon’ble Supreme Court has observed that the proceedings shall be decided and disposed of in accordance with law and on its own merits. The initiation of proceeding was thus, not interfered but the ultimate order passed by the Commission has to be tested on its own merits. The directions which have been issued in paragraph 247.1 and 247.2 are with respect to “for advertising purposes” and “for purpose other than advertising”. Insofar as sharing of user data for advertising purposes, the said is going on from 2016 when 2016 privacy policy was enforced. The ban of five years which was imposed in paragraph 247.1 may lead to the collapse of business model which has been followed by WhatsApp LLC. It is also relevant to notice that WhatsApp is providing WhatsApp services to its user free of cost - the ban of five years imposed in paragraph 247.1 need to be stayed. We, however, are of the view that the directions issued by the CCI under paragraph 247.2 and 247.3 need not be stayed and they need to be complied with. The only limited interim order which we are inclined to grant is to stay the direction in paragraph 247.1 by which five years’ ban has been imposed. The direction in paragraph 247.1 are stayed. Penalty - It is submitted by Appellant that 25% penalty has already been deposited - HELD THAT:- Subject to deposit of 50% of penalty (after taking into consideration 25% already deposited), the direction in paragraph 263 need to be stayed. The Appellant is directed to deposit 50% of penalty as indicated above within two weeks from today. Conclusion - The five-year ban on sharing user data for advertising purposes stayed, subject to conditions imposed. The other directions and penalties imposed by the CCI upheld. Application disposed off. 1. ISSUES PRESENTED and CONSIDEREDThe core legal issues considered in this judgment include:Whether the Competition Commission of India (CCI) had jurisdiction to initiate suo moto proceedings against WhatsApp LLC and Meta Platforms for the 2021 update of WhatsApp's Privacy Policy under the Competition Act, 2002.Whether the CCI's findings of a breach of Section 4 of the Competition Act, 2002, were justified, particularly concerning the anti-competitive effects of the 2021 update.Whether the directions and penalties imposed by the CCI, including a five-year ban on sharing user data for advertising purposes and a monetary penalty, were appropriate and within the CCI's jurisdiction.Whether the interim relief sought by WhatsApp LLC and Meta Platforms should be granted, particularly concerning the stay of the CCI's directions and penalties.The impact of the Digital Personal Data Protection Act 2023 on the proceedings and whether it should influence the interim relief granted.2. ISSUE-WISE DETAILED ANALYSISJurisdiction of the CCI:Relevant Legal Framework and Precedents: The CCI is empowered under the Competition Act, 2002, to investigate anti-competitive practices. The Supreme Court has affirmed the CCI's jurisdiction to proceed with investigations where there is a prima facie case of violation.Court's Interpretation and Reasoning: The Court noted that the Supreme Court had previously upheld the CCI's jurisdiction to investigate potential violations of the Competition Act, 2002, including the suo moto proceedings against WhatsApp LLC and Meta Platforms.Conclusions: The Tribunal concluded that the CCI had jurisdiction to initiate and proceed with the investigation against WhatsApp LLC and Meta Platforms.Findings of Breach of Section 4 of the Competition Act, 2002:Relevant Legal Framework and Precedents: Section 4 of the Competition Act, 2002, deals with the abuse of dominant position. The CCI found that WhatsApp's 2021 update potentially abused its dominant position by imposing unfair conditions on users.Court's Interpretation and Reasoning: The Tribunal considered the CCI's findings that the 2021 update had potential anti-competitive effects. However, the appellants argued that the CCI failed to demonstrate actual anti-competitive effects, which is a prerequisite for a Section 4 violation.Application of Law to Facts: The Tribunal noted that the CCI's findings were based on potential effects rather than actual anti-competitive effects, which the appellants contended was insufficient to establish a violation.Conclusions: The Tribunal did not explicitly conclude on the merits of the CCI's findings but focused on the appropriateness of interim relief.Appropriateness of CCI's Directions and Penalties:Relevant Legal Framework and Precedents: The CCI has the authority under Section 27 of the Competition Act, 2002, to impose penalties and directions for violations of the Act.Key Evidence and Findings: The CCI imposed a five-year ban on sharing user data for advertising purposes and a monetary penalty of Rs. 213.14 Crores on Meta Platforms.Court's Interpretation and Reasoning: The Tribunal considered the potential impact of the five-year ban on WhatsApp's business model and the fact that the Supreme Court had not stayed the 2021 privacy policy.Application of Law to Facts: The Tribunal found that the five-year ban could lead to the collapse of WhatsApp's business model and noted that WhatsApp provides free services to users.Conclusions: The Tribunal granted interim relief by staying the five-year ban but upheld the other directions and imposed penalties, subject to certain conditions.Interim Relief and Impact of Digital Personal Data Protection Act 2023:Relevant Legal Framework and Precedents: The Digital Personal Data Protection Act 2023, although not yet enforced, could potentially impact the proceedings and the CCI's jurisdiction over data protection issues.Court's Interpretation and Reasoning: The Tribunal considered the potential impact of the upcoming data protection legislation and the fact that the Supreme Court had not granted interim relief against the 2021 privacy policy.Conclusions: The Tribunal granted interim relief by staying the five-year ban but required compliance with other directions. The Tribunal also allowed for modification of the order if the Digital Personal Data Protection Act 2023 is enforced.3. SIGNIFICANT HOLDINGSCore Principles Established: The Tribunal affirmed the CCI's jurisdiction to investigate potential anti-competitive practices, even in the context of data protection issues, pending the enforcement of specific data protection legislation.Final Determinations on Each Issue: The Tribunal stayed the five-year ban on sharing user data for advertising purposes, subject to conditions, but upheld other directions and penalties imposed by the CCI, with the possibility of modification upon enforcement of the Digital Personal Data Protection Act 2023.
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