Abuse of Dominant position plea against Facebook and WhatsApp dismissed by CCI

The Competition Commission of India dismissed a plea (Harshita Chawla Vs. WhatsApp Inc., Case No 15 of 2020) and others alleging abuse of dominant position by Facebook and Whatsapp by launching Whatsapp Pay feature. The informant contended that by enabling automatic installation Whatsapp Payments App in Whatsapp Messaging App, the messaging App is taking advantage of its vast userbase to popularize its newly launched Whatsapp Pay App.

The Competition Commission of India prima facie found Whatsapp to be dominant in the first relevant market i.e. ‘market for OTT messaging apps through smartphones in India’. The Commission also expounded the essentials for establishing a tying agreement as

  1. The tying and tied product are two separate products
  2. The entity concerned is dominant in the market for tying product
  3. The customers or consumer does not have a choice to only obtain the tying product without the tied product
  4. The tying is capable of restricting/foreclosing competition in the market

The commission observed that both Whatsapp Messenger and Whatsapp pay are two distinct products with different functionalities, they exist in two separate markets as well. The commission further observed that the installation of Whatsapp messenger does not explicitly coerce the user to use Whatsapp pay, hence the third essential condition to establish a tying agreement is not meet.

While dismissing the plea the commission further noted that “Facebook and Whatsapp undeniably deal with customer sensitive data which is amenable to misuse and may raise potential antitrust concerns among other data protection issues. However, in the present case, the Informant has only alleged that WhatsApp/Facebook have access to data which they are using for doing targeted advertising. There is neither any concrete allegation, nor any specific information to support the competition concern of the Informant. In the absence thereof, there is nothing on record which the Commission can examine”

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