By G.R. Bhatia and Manav Gupta1
The uncertainty surrounding the policy was recently compounded as the long-awaited Personal Data Protection Bill (“PDP Bill”) was unexpectedly withdrawn on 3rd August 2022, before it could be tabled before the Parliament. The Parliament was informed that certain amendments suggested by the Joint Parliamentary Committee in its report on the Bill were being considered and a new Bill having a comprehensive legal framework will be soon introduced.2
In Karmanya Singh Sareen case, the DHC noted in its judgment dated 23.09.2016 that a petition challenging the WhatsApp terms of service was not amenable to the writ jurisdiction under Article 226 of the Constitution (especially since the Right to Privacy had not been affirmed by the Supreme Court of India at that time). In August 2017, the Hon’ble Supreme Court of India (“SC”), vide a landmark judgment in K.S. Puttaswamy v. Union of India12 clarified that the Right to Privacy is a fundamental right guaranteed under the Constitution of India.
The issue, therefore, remains embroiled in litigation before numerous forums and thus, it is often argued that a more appropriate approach to deal with such issues concerning data-sharing and user’s online privacy would be to set up a “Data Protection Authority” by enactment of a law.
While CCI’s decision to analyse the issue from a “Competition Lens” is a welcome step, it is also important for the DG and later the CCI to take a holistic view of the case and not get swayed by the negative perception surrounding the policy. It must be kept in mind that most of the “big-tech” companies such as WhatsApp, Facebook, Google etc. which offer “free services” to users without discrimination, rely upon such data sharing to generate revenue and improve their services. The user-friendly services and continuous/ constant effort to innovate and improve the standard of services needs to be given due recognition. A balanced approach must be taken as discouraging innovation in any way and manner would have a chilling effect on Competition. Therefore, the DG and the CCI, ought to bear in mind the potential far-reaching implications of this case before making any conclusions.
The only thing which can be said with certainty, for now, is that this saga is far from over and a long-drawn battle before the CCI and the Appellate tribunal/ SC awaits. Thus, prudence suggests that a fresh Data Protection Bill be introduced, enacted and brought in force as soon as possible.
1 G.R. Bhatia is Partner & Head of Competition Law Practice at Luthra & Luthra Law Offices India. He is former Additional Director General at the Competition Commission of India and the MRTP Commission. He is assisted by Manav Gupta, Associate at Luthra & Luthra Law Offices India. The views expressed herein are personal and the author can be contacted at email@example.com.
4 The European Economic Area comprises of the EU countries and Iceland, Liechtenstein and Norway.
8 It is the second largest fine ever imposed under the GDPR.
10 Karmanya Singh Sareen & Anr v. Union of India & Ors., (2016) 233 DLT 436 (DB).
11 Vinod Kumar Gupta v. CCI, CCI Case no. 99 of 2016.
12 K.S. Puttaswamy v. Union of India, 2017 (10) SCC 1.