WhatsApp has not abused dominant position in India, rules NCLAT

The NCLAT has set aside a petition and upheld a 2017 CCI order that dismissed a complaint of predatory pricing against instant messaging platform WhatsApp.

The National Company Law Appellate Tribunal (NCLAT) said no doubt WhatsApp has a ‘dominant position’ but it has not ‘abused its dominant position’ based on inputs provided by the appellant, an NGO Fight for Transparency Society. “We do not find any inconformity in the findings of Competition Commission of India (CCI) and hence, the Appeal’ deserves to be dismissed and accordingly is dismissed,” said the NCLAT order dated August 2, 2022.

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The Competition Commission of India (CCI) on June 1, 2017 rejected the complaint of the NGO alleging predatory pricing by WhatsApp, which was acquired by Facebook in 2014, by not charging any subscription fee from the users. The NGO had alleged that WhatsApp has made many changes to its privacy policy from the time Facebook acquired it, which was an abuse of its dominant position.

The complaint was rejected by the CCI, following which the NGO challenged the order before the NCLAT, requesting that the fair trade regulator’s order be set aside and direction be issued to launch an investigation in the matter. The NCLAT observed that simply updation of terms and conditions and the users consenting or non-consenting does not amount to an abuse of dominant position in the relevant market where WhatsApp is operating as one of the service providers in the form of messaging App.

The two-member bench also observed that in the market multiple messaging providers are available. “In the digital age it has become a common practice,” said NCLAT, which is an appellate authority over the orders passed by the CCI. The NCLAT also said the law laid down by foreign authorities is not binding on it.