Selective Activism And Public Faith In Regulators

On 24 March 2021, the Competition Commission of India passed an order that came as a shock to most Indian Competition Law enthusiasts. In a suo moto case, the Commission passed a 21-page order directing a probe into the recently updated WhatsApp privacy policy alleging it of abuse of dominance (copy of order available here). The Commission, inter alia, has recognised the competitive significance of ‘non-price parameters of service like quality, customer service, innovation’ etc, has taken note of the ‘network effects of data’, and has alleged WhatsApp of abusing its dominance by trying to impose ‘unfair terms and conditions upon the users’ in violation of the provisions of the Competition Act. For competition authorities across the globe, privacy has been the elephant in the room since 2012, when the European Commission started recognising the network effects of data on digital platform markets. Since then, various competition authorities have come forward to recognise data privacy as an integral part of market competition on various occasions. It hasn’t been easy, though. Data privacy comes under the jurisdiction of privacy officials, and hence competition authorities have often been reluctant of crossing the boundaries of competition law and stepping into the regulatory jurisdiction…
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