Competition Commission of India found Meta (WhatsApp) abused its dominant position by imposing unfair terms for data sharing.
Cease and desist from anti-competitive practices; implement directions on data sharing limitations and opt-out options; deposit penalty of Rs. 213.14 crore.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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COMPETITION COMMISSION OF INDIA
Suo Motu Case No. 01 of 2021
In Re: Updated Terms of Service and Privacy Policy for WhatsApp users
Against: WhatsApp LLC Opposite Party No. 1 Meta Platforms, Inc. Opposite Party No. 2 WITH Case No. 05 of 2021 In re: Prachi Kohli Informant Against: WhatsApp LLC Opposite Party WITH Case No. 30 of 2021 In re : Internet Freedom Foundation Informant
Against: WhatsApp LLC Opposite Party No. 1 Meta Platforms, Inc. Opposite Party No. 2 Present For WhatsApp LLC : Mr. Arun Kathpalia, Senior Advocate with Mr. (WhatsApp) Yaman Verma, Ms. Aisha Khan, Mr. Aniket Ghosh, Ms. Parinita Kare, Ms. Bani Brar, Ms. Tahira Kathpalia and Ms. Supritha Prodaturi, Advocates For Meta Platforms, Inc. (Meta) : Mr. RajShekhar Rao, Senior Advocate with Mr. Naval Chopra, Ms. Krithika Ramesh, Ms. Meherunnisa A. Jaitley, Mr. Rajarshi Roy, Ms. Nitika Dwivedi, Ms. Bani Brar and Ms. Supritha
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Prodaturi, Advocates, along with Ms. Ruth Chen and Mr. Rahul Satyan, Representatives of Meta.
For Facebook India Online Services Limited (Facebook India)
For Internet Freedom Foundation (IFF)
CORAM:
Ms. Ravneet Kaur Chairperson
Mr. Anil Agrawal Member
Mr. Deepak Anurag Member
Order under Section 27 of the Competition Act, 2002
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WhatsApp's terms of service and privacy policies. The text of such notification, as reported in media, is as follows:
WhatsApp is updating its terms and privacy policy.
Key updates include more information about:
By tapping AGREE, you accept the new terms and privacy policy, which take effect on February 8, 2021. After this date, you will need to accept these updates to continue using WhatsApp. You can also visit the Help Center if you would prefer to delete your account and would like more information.
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Directions to the Director General (DG)
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Special Leave Petitions were preferred by the OPs. The Hon’ble Supreme Court vide its judgment dated 14.10.2022 dismissed the SLPs filed by parties. The Court observed that the Commission should not be restrained from proceeding further with the enquiry/investigation for the alleged violation of any of the provisions of the Act.
Investigation by the DG
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Consideration of the Investigation Report by the Commission
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(Determination of Turnover or Income) Regulations, 2024 and the Competition Commission of India (Determination of Monetary Penalty) Guidelines, 2024 (Penalty Guidelines).
Replies/objections/suggestions by the Parties.
Analysis and findings of the Commission
About the Parties
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rights of internet users before policymakers, regulators, courts and the wider public sphere and claims to be working in furtherance of that objective to bring transparency to policies and defend and expand digital rights.
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company is busy, and quick replies to provide fast answers to frequently asked questions); (c) provides messaging statistics; (d) allows businesses to chat from their desktop to manage conversations and send files to customers; and (e) provides tools for businesses to organize contacts and chats. Businesses have the option to build a WhatsApp business profile which includes additional fields (including address, category, products or services offered, hours of operation, email address, and website fields), but they are not required to do so.
Preliminary Objections
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players. In data-driven markets, the role of competition authorities is significant as data has emerged as a critical parameter of competition and a source of market power. Digital platforms that rely heavily on data often have the potential to gain substantial market power due to the unique characteristics of data, such as its ability to be collected, processed, and utilized on a massive scale. Such platforms can leverage their extensive data repositories to create barriers to entry, exclude competitors, or engage in discriminatory practices, thus stifling competition and reducing consumer welfare in the long run.
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competing effectively in the market. On the other hand, exploitative abuses are characterized by actions like reducing service quality or demanding excessive user data for access to existing services. Such practices can degrade the quality of service and harm consumer welfare, as reduced privacy or misuse of data can be seen as a decrease in service quality.
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“… Competition policy contributes to economic growth to the ultimate benefit of consumers, in terms of better choice (new products), better quality and lower prices. Consumer welfare protection may be required in order to redress a perceived imbalance between the market power of consumers and producers. The imbalance between consumers and producers may stem from market failures such as information asymmetries, the lack of bargaining position towards producers and high transaction costs. Competition policy may serve as a complement to consumer protection policies to address such market failures …”
“ 26. At the outset, it becomes pertinent to delineate the objective of the Competition Act, 2002, and the role of the CCI. The objective of the Act is set out in the Preamble itself, i.e. to establish a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers, and to ensure the freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto. Chapter II of the Competition Act prohibits certain agreements, abuse of dominant position, and regulation of combinations, with Section 4 specifically prohibiting the abuse of dominant position. Chapter IV of the Act deals with provisions which set out the duties, powers and functions of the CCI, with Section 18 stating that it shall be the duty of the Commission to eliminate practices relating to the principles set down in the Preamble itself.
27. Therefore, as has been succinctly enumerated by the Supreme Court in Competition Commission of India v. Steel Authority of India (supra), the main objective of competition law is to promote economic efficiency using competition as one of the means of assisting the creation of a market responsive to consumer preferences. Satisfactory implementation of competition law would lead to a threefold advantageous system wherein there would be allocative efficiency, which ensures effective
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allocation of resources; productive efficiency, which ensures that costs of production are kept at a minimum; and dynamic efficiency, which promotes innovative practices. One can only proceed ahead with a matter entailing an attack to the jurisdiction of the CCI by keeping these objectives of the Competition Act in mind.
28. The primary issue that has been submitted before this Court is with regard to the overlapping jurisdiction of the CCI and the Constitutional Courts, and whether CCI should abstain from exercising its jurisdiction to maintain comity between decisions of different authorities on the same issues…..
32. …... Contrary to what has been submitted by the Appellants, this observation cannot be interpreted as a holding that the issues being considered by both the authorities are the same. Even if the issues are the same, the approach of the authorities is vastly dissimilar, and there exists no inviolable rule that the CCI would completely lack jurisdiction in the instant matter. Parallel inquiries by two different authorities in their respective spheres of adjudication is not uncommon and a slight overlap between the inquiries does not mean that one must lead to the ouster of the other. Therefore, in the absence of any irreconcilable repugnancy between the jurisdiction of both the authorities, i.e. CCI and the Constitutional Courts, the CCI has the liberty to proceed ahead with its investigation under Section 26(1) of the Act.
33. The investigation conducted by the CCI will not be affected by the outcome of the proceedings pending before the Apex Court and this Court. In the event the Supreme Court upholds the 2021 Policy, then surely CCI can venture into the question as to whether the provisions of the Act have been violated or not. In the event that the 2021 Policy is set aside by the Supreme Court, the CCI will still possess the jurisdiction to investigate the violation of the Act, if any, during the pendency of the matter before the Supreme Court when the 2021 Policy was in operation. In either of the cases, it cannot be stated that the CCI does not have the authority look into this affair being the market regulator….”
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promote competition, and protect consumer interests. As observed by the Courts, the Commission’s jurisdiction operates independently and concurrently with other authorities, including Constitutional Courts, even in instances where there may be a potential overlap in the subject matter of inquiries. The objectives of competition law, as set out in the Act, focus on promoting economic efficiency. Mere existence of parallel proceedings or the involvement of other authorities does not strip the Commission of its jurisdiction. Thus, the Commission retains the authority under the Act, irrespective of any ongoing legal proceedings in other forums, reaffirming its role as the market regulator and guardian of competition principles. Accordingly, exercise of its jurisdiction in the present matter is in full compliance with Commission’s averments before the Hon’ble Delhi Court as well as the Hon’ble Supreme Court.
Role of Facebook India
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Service, the Facebook service, the Instagram service or the (Facebook) Messenger service; (c) Facebook India is not involved in WhatsApp’s alleged collection and sharing of user data with Meta or any other Meta companies pursuant to the 2021 Update; and (d) Facebook India is not involved in Meta’s alleged use of user data received from WhatsApp.
Relevant Market and Assessment of Dominance
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of relevant market generally has two dimensions i.e., relevant product market and the relevant geographic market. Similar position emerges from Section 19(5) of the Act.
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Relevant Market
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Service), or text messaging provided by mobile network operators. Unlike conventional messaging services that rely on the telecom network's infrastructure, OTT messaging relies solely on an internet-based data connection (such as Wi-Fi or mobile data). This means that users are not dependent on their carrier's voice or text services and can communicate freely as long as they have internet access. This fundamental difference allows OTT messaging services to bypass the costs and limitations associated with traditional telecom services.
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between messaging / audio / video services) in view of the demand and supply-side realities. The consumer communication services market includes not only OTT messaging apps such as JioChat, Zoom, Skype, Signal, Telegram, and Snapchat, but also SMS, MMS, RCS, voice services, proprietary apps (such as FaceTime, iMessage and Google Messages), and email. Each of these services is substitutable for the other; their intended use is similar (communication), their price is similar (free), and they are all offered on the same device.
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the WhatsApp Service, despite the fact that those services also provide vibrant messaging functionalities.
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consumer, based on their characteristics, prices, and intended use. This definition implies that products and services should be considered part of the same market only if consumers regard them as direct substitutes. Different digital services like social media platforms, streaming services, and search engines do not necessarily serve the same consumer needs or provide the same functionalities. Users engage with WhatsApp, Facebook, Netflix, X (formerly Twitter), etc., for distinct purposes i.e., communication, social interaction, entertainment, micro-blogging, etc. Therefore, they cannot be considered interchangeable or substitutable solely based on the user's attention. The fact that all these services compete for attention does not automatically make them part of the same market, as their characteristics and intended uses differ significantly.
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targeted ads, which helps advertisers promote their products or services and drive sales. However, for users, the platform meets their demand for social networking, communication, or content sharing. The two sides of the market serve distinct demands i.e., advertisers seek to reach potential customers, while users seek to connect and communicate with each other. Therefore, defining the market as one for "user attention" may erroneously conflate these two distinct types of demand coming from two distinct user sides, which competition law does not intend to do. Instead, competition law looks at the relevant product market from the perspective of the distinct needs and preferences of each market side, recognizing that user and advertiser demands are not interchangeable or substitutable.
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Therefore, the contention of WhatsApp in relation to broader user attention market is rejected sans merit.
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significantly in their style, speed, and delivery. Email is typically used for more formal, structured communication and often involves longer messages with detailed content or attachments like documents and files. It is suited for professional or official exchanges and does not emphasize real-time interaction. In contrast, OTT messaging apps, such as WhatsApp or Signal, are designed for instant, real-time communication, favouring shorter, conversational messages with features like multimedia sharing, voice and video calls, and often include read receipts and online status indicators, providing a more dynamic and interactive communication experience. The user interface and accessibility of these platforms also vary. Email is accessible on both desktop and mobile platforms but are generally optimized for desktop use, where users can manage longer messages and more complex tasks. Conversely, OTT messaging apps are highly optimized for mobile devices, emphasizing quick messaging and ease of use for continuous, ongoing conversations. Another key difference lies in integration and functionality. Email integrates well with various productivity tools, such as calendars, task management apps, etc. , making it an essential tool for business and professional environments. OTT messaging apps focus more on social interaction and multimedia communication, integrating features for voice and video calls, group chats, location sharing, and even payments.
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multiple platforms and devices, allowing seamless communication regardless of the user's choice of device or operating system. Consequently, proprietary apps lack the flexibility, reach, and inclusiveness of interoperable OTT messaging services, making them less suitable as a universal communication tool, particularly in a diverse and interconnected user base.
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devices. OTT messaging apps like WhatsApp, primarily designed for smartphones, provide seamless and instant messaging capabilities. Desktop-based communication apps are generally not optimized for the instant, always-on messaging experience typical of smartphone-based apps, which impacts how consumers perceive and use these services. The instantaneous messaging feature available on smartphone has led to WhatsApp’s penetration in Indian markets. Moreover, the OPs have not provided data showing that any major competitor is excluded from the relevant market in a way that would reduce WhatsApp's market power. Apps available on PCs only, if any, lack reasonable substitutability with mobile apps due to key functional difference between both in terms of mobility. Even if WhatsApp's argument were accepted, it would not significantly change the market dynamics, as Meta's dominance with WhatsApp, due to its vast user base and smartphone-centric approach, remains largely unaffected. Therefore, devicebased segmentation is required to accurately assess the competitive landscape and Meta's market power.
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Assessment of Dominance of the OPs
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market for Over-The-Top (OTT) messaging apps through smartphones in India through WhatsApp.
Market Shares based on Daily Active Users and Monthly Active Users data
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underlying dynamics that drive concentration and user behaviour within digital ecosystems.
DAU of OTT messaging apps in India (as of December of the relevant year)
(In Millions)
Year 2016 2017 2018 2019 2020 2021
(5 months)
Facebook
Messenger
WhatsApp
Snap
Viber
ShareChat
JioChat
Hike
BlackBerry
Line
Source: Investigation Report data collected from the respective parties
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MAU is an indication that a product / app enjoys good customer engagement and retention over a period of time. MAU data collated by the DG during investigation is as follows:
MAU of OTT messaging apps in India (as on December of the relevant year)
(In Millions)
| Year | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 (5 months) |
|---|---|---|---|---|---|---|
| Facebook Messenger | ||||||
| Snapchat | ||||||
| Viber | ||||||
| ShareChat | ||||||
| JioChat | ||||||
| Hike | ||||||
| BlackBerry | ||||||
| Line |
Source: Investigation Report data collected from the respective parties
cumulative number of its rivals suggesting a strong market position enjoyed by it.
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million for Facebook Messenger).
“….Lifetime downloads (since 2014) in India stood at 3.9 million for Signal and 151.5 million for Telegram, while WhatsApp has a whopping 1.4 billion downloads from India in the same period…”
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process seems to suggest lack of concern regarding developments in the OTT messaging apps market in India. In the absence of any information to the contrary, the Commission concludes that Signal does not constitute a significant or formidable player in the Indian market.
On the contrary, a service may be assessed on the basis of user engagement. The level of user engagement is a direct measure of the quality of a service. The better the quality of the service offered by a specific platform, the more engagement users will have – all else equal – with that specific platform. Engagement can be measured by a variety or combination of metrics such as active users, clicks, time spent, etc. Recognizing this, competition authorities (including, the Commission) have used other metrics / parameters which more accurately measure active user engagement …
(Emphasis added)
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presence of better metric in the form of user engagement. Therefore, download data relied upon by the OPs to assert competitive constraints faced from Telegram and Signal is erroneous and misplaced.
Top 10 most used messenger services
in India
WHATSAPP 90%
FACEBOOK MESSENGER 56%
TELEGRAM 45%
ZOOM 45%
SNAPCHAT 30%
GOOGLE HANGOUTS 26%
SKYPE 24%
MICROSOFT TEAMS 18%
DISCORD 15%
FACETIME 15%
0% 20% 40% 60% 80% 100%
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Facebook Messenger, Telegram, Signal, etc . This information / data has to be assessed in conjunction with other data available on record to determine dominance of the OPs. In fact, the OPs have also relied on the same report to assert that the Statista Survey also demonstrates multi-homing as the total share of the "top 10 most used messenger services in India" significantly exceeds 100%” . Therefore, the contentions of the OPs that reliance placed by the DG on Statista Survey is substantively improper is unfounded and thus, rejected.
Network Effects, Switching Costs and Entry Barriers
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users on one app, enhancing the app’s market power and making it difficult for competitors to attract users.
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a result, smaller competitors often remain secondary or are effectively excluded from the market, creating a "winner takes most" or "winner takes all" scenario. For example, Meta's OTT messaging apps like WhatsApp and Facebook Messenger have consistently high numbers of daily active users (DAUs) and monthly active users (MAUs), reflecting their strong market position. This exponential increase in DAU and MAU numbers also evidences presence of direct network effects wherein presence of users on the platform attracts more users. It is also noted that despite the announcement of 2021 Policy Update by WhatsApp in January 2021, its user base did not suffer any decline, and it kept increasing.
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network effects, where the growth in one group of users (businesses) is fuelled by the increase in another (individual users), have been pivotal in expanding WhatsApp's functionality beyond personal messaging to include robust business services. These indirect network effects, when combined with direct network effects, further elevate the barriers to entry for OTT messaging apps.
Telegram’s Reply dated 23.06.2021
Query (xiii ) of the DG Notice
Would the sharing of information of its consumers by Whatsapp with Facebook and Facebook companies under its 2021 policy, lead to denial of market access to ‘Telegram’ in India? Please explain with figures and details to substantiate your stance.
Response:
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18. We have not found any cogent evidence so far which suggests that we have faced such a situation of barrier to expand our user base in India.
Telegram Reply dated 07.07.2021
“It is clarified that the query 3 (xiii) of the Notice of the DG dated 27 May 2021 (“Notice dated 27 May 2021”) and the response of Telegram FZ-LLC to the same, filed on 23 June 2021, is in relation to “denial of market access” and not on impact of data sharing between WhatsApp and Facebook on Indian users.”
“We have not conducted any analysis on whether WhatsApp has any network effects, and therefore, will not be able to assess the impact on Telegram.”
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appreciable adverse effect on competition resulting from the combination. On the other hand, in abuse of dominance cases, the Commission must assess the prevailing market conditions to determine if any anticompetitive conduct is occurring. Thus, the Commission’s conclusions from a dated assessment in an another context are not sufficient to disregard the market realities which have been unravelled in an in-depth investigation. Furthermore, in rapidly changing markets in particular, market assessment cannot have a static approach. In the present case, the Commission has the benefit of a detailed investigation which has revealed that network effects are a critical factor in determining the success of new entrants in the OTT messaging market. These network effects, which strengthen as more users join a platform, significantly hinder the ability of new players to enter and compete effectively. This is evidenced by the market exit of platforms like Hike, which struggled to gain traction against larger competitors with entrenched user bases. Therefore, it is imperative to assess market conditions on a caseby-case basis, particularly in the fast-evolving digital markets where the landscape can shift rapidly.
Dependence of the consumers on the enterprise:
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switching to another platform. Further, network effect not only restrict the existing users from leaving the platform, but also attracts new users to register on the platform.
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to Snapchat, etc. Accordingly, the extent of multi-homing claimed by the OPs is overstated and the claim of the OPs remains un-substantiated.
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Size, resource and economic power of the enterprise and competitors
Assets and Revenue of Meta Platforms, Inc.
(in million USD)
| Year | Total Assets | Revenue |
|---|---|---|
| 2016 | 64,961 | 12,427 |
| 2017 | 84,524 | 20,203 |
| 2018 | 97,334 | 24,913 |
| 2019 | 133,376 | 23,986 |
| 2020 | 159,316 | 32,671 |
| 2021 | 165,987 | 46,753 |
Assets of competitors in OTT Messaging Services
(INR in crores)
Year
Name of the Party
2018 2019 2020 2021
Line
Jio Platforms Ltd.
Hike -- --
Snapchat
BlackBerrry Limited
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stated to be Jio Platforms Ltd. Further, other competitors have negligible assets, i.e., too miniscule to compare with Meta’s assets.
Vertical integration of the enterprises
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Other averments of the OPs
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where the ability to dictate ‘ price’ is an important factor to assess dominance. The DG fails to apply any appropriate economic test or reasoning that is specific to zero-priced markets. It has also been averred that the Investigation Report fails to consider the high levels of innovation in zero-priced digital markets, disregards the importance of multihoming in such markets as well as how new entrants in zero-priced markets can quickly gain users.
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lists, case filings, and case listings, directly via WhatsApp messages. Such examples are not un-common in respect of WhatsApp and the same illustrates how deeply integrated WhatsApp has become in both public and private spheres. Such pervasive use reinforces the platform's dominance, as reflected in the statutory test, which requires assessing an enterprise's ability to operate independently of competitive forces and its influence on consumers and market conditions. Daily life examples like this further substantiate the conclusion that Meta, through WhatsApp, holds a dominant position in the Indian market. WhatsApp has become synonymous with messaging itself indicating the platform’s deep integration into everyday communication.
Conclusion
B. Market for Online Display Advertising in India
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India. Further, competitive conditions and regulatory structure in India is different from the global conditions for the online display advertising market.
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Distinction between Online and Offline modes of advertising
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particularly search ads, focuses on driving immediate consumer actions, such as purchases or downloads, by directly engaging users and leading them towards specific conversions.
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Distinction between Search and Display Advertising
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“There are a number of key differences between online search advertising and online non-search (or display) advertising.
With search advertising, the users have already input a query, so they are either primed to take an action or are doing research for a future action. Thus, search advertising is really focused on the bottom of the funnel-intent and conversion. Display advertising can serve the entire funnel (awareness, consideration, intent, and conversion). Thus, for example, if an advertiser just started a new brand, it would be less likely to use search advertising to raise brand awareness and inform potential customers about its brand and product.
The targeting capabilities are therefore different between online search ads and online display ads. The biggest difference is that search advertising is intent- driven, whereas display advertising is audience driven. For search advertising, advertisers bid on geography and keywords. For display advertising, the advertiser bids on characteristics of the user. The planning of search ad campaigns tends to be more straightforward, because search ads tend to be text based, whereas display ads are photo or video based.”
119.2 LinkedIn Technology Information Private Limited vide its submission dated 23.07.2021 has submitted that,
“Marketers and advertisers seek to achieve sales through what's known in the industry as the "sales funnel," where the initial marketing activities begin at the top of the funnel with brand introduction then move through the middle, which involves building the brand favourability and gaining customer trust, then move toward the bottom of the funnel-where customers form an intent to purchase, conduct price comparisons, download any white papers, then ultimately arrive at the purchase decision. Marketers allocate their advertising spends across the sales funnel and at each level, have available a range of marketing channels to achieve their objectives. It is thus advantageous for digital advertising service providers to have robust solutions across the entire funnel process to maximize their share
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of the total digital advertising spend.
……search advertising has certain advantages as it enables marketers to reach the intended target audience with almost immediate results, where pay-per-click (PPC) ads are displayed directly on search results for a certain keyword or phrase. A PPC campaign can increase traffic to the marketer's website and drive higher conversions because in many instances, customers are actively searching keywords that are relevant to the marketer's product or service, i.e., qualified leads. Search advertising campaigns also allow for easy tracking and measurement of customer responses to the marketer's keywords and phrases…..
Display advertising is mostly focused on the upper and medium portions of the sales funnel to introduce and build a brand in gaining consumer trust and interest. When a marketer tries to build its brand and move down the sales funnel towards conversion, the volume of consumer engagement and the ability to reach the target audience with higher frequency all play an important factor in that process. This is Facebook's key advantage in display advertising….”
(viii) Do you find any differences between search and display advertising? lf yes, please give the features and your preferences for either.
Search advertising is offered primarily on Search engines by Search engines like Google search ads on Google.com search page. Display advertising is done across by all other type of Publishers, Websites or Apps on desktop or mobile.
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display ads are paid placements that appear based on various targeting parameters …”. Other submissions of Taboola are as follows:
“…the main difference between search and display advertising is that search advertising uses the "pull" method while display advertising uses the "push" method. This means that search ads only appear to users who are already actively searching for advertisers' products or services, while display ads are paid placement that appear to users who are targeted purposefully for those ads.
ln other words, search advertising uses individual users' cookies to "pull' relevant ads based on their search results/history; while 'display advertising" uses other factors such as the publishers' industry, etc. to 'push' relevant advertisements to users.”
119.5 Twitter, Inc. vide its reply dated 02.08.2021 has submitted that,
Twitter understands that online search advertisements are displayed based on a proactive search query keyed by a user. Online display advertisements do not typically require users to proactively look for a product / service. Instead, online display advertisements are typically triggered when users browse through websites / mobile applications and their interests are matched to relevant advertisements.”
119.6 InMobi Technology Services Private Limited (InMobi) vide its submission dated
09.07.2021 has stated that:
“….search ads (ads based on search engine services) are a form of price per click advertising in which brands pay (using an auction-based model) to have their ads displayed above and below organic search engine results when users search certain keywords. Display ads aren't limited to appearing in only one location like search ads. Display ads appear across partner publisher’s mobile apps and websites as banner and native ads.
11 . The main difference between search ads and display ads is that search
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ads are a form of "pull'' advertising while display ads are "push' advertising. Meaning, search ads only appear to those who are already searching for a product or service, while display ads are paid placements that appear based on various targeting parameters.”
“(ix) Is there any inter-changeability between search and display advertising?
No, the segments of search and display advertisements are not interchangeable. Majority of the advertisers have different advertisement budgets for Search, Social and Display Advertisements.”
“Both the Search advertisement and Display advertisement are different segments, with advertisers spending their ad spent on both the segments simultaneously, having said that, the first preference is always Search Advertising, as that brings higher return on ad spent, generating more conversions for the brand; However, Display Advertising is a better way of building brand by creating awareness around the Brand and Product.”
“Search and display advertising are quite different. While Affle's business pertains only to display advertising, we are sharing some details below based on our industry understanding of both these businesses.
Search advertising is where a user is shown ads related to products/services/queries he has searched for. The relevance of this advertising is thus very significant to what the user is looking for. These ads are also mostly shown as sponsored links and most average users find it difficult to differentiate organic search results and sponsored results and/or ads (even though the platforms showcase this difference subtly).
Display advertising in comparison is where ads are showcased as banners, logos, icons and/or videos when users are navigating through free internet
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sites/apps. Here the user does not provide obvious intent (like a search query) and ads served to him may / may not always appeal to him. The ads are also more obviously distinguishable for the user as they usually look very different from the content site/app which the user is on.”
(ix) ls there any inter-changeability between search and display advertising?
Technically advertisers have an option to do both search and display advertising but most of these advertisers allocate separate budgets for both due to inherent differences between the two types of advertising. Some early stage advertisers find it easier to start with search as there the user interest / intent is most validated vs. display where the relevance of the ad is more inferred by the platform delivering the ad vs. being implicitly stated by the user.
119.9 Pinterest, Inc. (Pinterest) provides a suite of advertising products, including brand and performance-based advertising. Pinterest vide its submission dated 22.07.2021 has submitted as follows:
Online display advertising services provide for the display of ads targeted to particular users based on the interests suggested by users' network profiles and activity. For example, an online display advertising service will show an ad to a particular user that the service presumes will be relevant or interesting to that user based in part on the user's previous click, following, saving and, purchasing activity.
Online search advertising services function differently from display advertising (see Question viii)) by providing for the display of ads that involve the matching by search advertising platforms of user queries with relevant search ads. Thus, when a user types in a search query into the search bar, an online search advertising service will use the words in the query to determine which ads would be relevant and interesting to show the user in response to the search. For example, if a user types "running shoes" into the Google search bar, Google may display ads for Adidas, Sketchers and JackRabbit (all makers of running shoes), and may also display an ad for Runners World, a magazine that contains an article describing the "10 Best Running Shoes for 2020".
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Search and display advertising do utilize different ad tech to deliver their ads. Online search advertising requires the use of an ad serving model that utilizes keywords and search terms, while online display advertising requires the use of an ad serving model that utilizes data regarding a user's network profile and activity.
(viii) Do you find any differences between search and display advertising? lf yes, please give the features and your preferences for either:
Reply: Yes, the major difference between the two types of ads is that display ads use a push approach, while search ads use a pull approach. ln other words, the audience that comes across search ads are already looking for the advertised product, while display ads are targeted after watching a relevant video or browsing the web for relevant products. Knowing the difference between these two approaches can help one to quickly determine the right strategy based on the brand or product/service awareness. Our Preference lies with display advertising.
(ix) ls there any inter-changeability between search and display advertising?
Reply: While display ads can show up on sites across the Internet, search ads only appear in search engine results. Advertisers select a list of keywords that are relevant to their company or products and can bid to have their ad show when someone searches for those words or phrase.
“Search Ads are ad-placements within the search engine results page. They are limited to the search result pages of the search engine platforms. Display Ads on the other side are ad placements across different websites or apps that users are browsing on across the web.
Search Ads & Display ads both cater to different business goals. We would use search ads in scenarios where we intend to cater to local audience,
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have smaller sales cycle and budget, have focus on leads rather than branding or our product or service is of the type where users generally take instantaneous actions and are likely to use search engines at the time of need - for e.g., emergency services like doctors, plumbers, etc. We would prefer display ads where the audience spread is high, main intent is branding or brand promotion, in case where our ads are more user engaging or for passive kind of audience and when our sales cycles are long and we can leverage the same audience through remarketing, crosschannel marketing etc. at later points as well.”
“Display has a greater demand in our view, though search would not lag too much from display ad spends. The main reason being that display ads are much cheaper and can cater to a wider set of audience and also have a wider reach. Also display ads provide more flexibility to brands in terms of ad designs where ads can be more user engaging and focused on brand messaging. Also display are "Push" kind of ads while search are "Pull" kind of ads, so for new businesses / products or services display ads would be the first go to choice in terms of brand building. Globally overall display ad spends are also more than search ad spends.”
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advertising is often measured in terms of brand awareness and engagement metrics rather than direct sales.
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122.1 Relevant extracts from submissions dated 30.06.2021 of Collectcent are as follows: “(ix) ls there any inter-changeability between search and display advertising?
Depends upon clients advertising strategy. Clients prefer to split budgets between both types of advertising.
(x) ls a separate budget assigned for search and display advertising independently?
Yes”
122.2 Xapads vide its submission dated 07.07.2021 has submitted that:
(x) Is a separate budget assigned for search and display advertising independently?
Yes, there are separate budgets for Search, Social and Display Advertisements. Here's how a brand generally divides there advertisement budgets:
a. Budgets of Search Advertisements are given out to Search Giants like Google, Microsoft Bing etc.
b. Budgets of Social Advertisements are given out to Social Media Companies like Facebook, Instagram, and Twitter etc.
c. Remaining Budgets are given out in form of Display Advertisements, which are given out to companies like ours.
(x) ls a separate budget assigned for search and display advertising independently?
Yes, in most cases we see this to be true.
However, we believe that advertising / media agencies are more qualified to answer such questions as they manage these budgets on behalf of advertisers, and as Affle we play only in the display advertising market.
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same. However, the Commission is of the view that given the significant differences between search and display advertisements, as elaborated above, one cannot replace the other. Rather, this division of budget reflects that advertisers see both forms of advertising as complementary tools rather than direct substitutes. By investing in both, advertisers ensure that they are effectively reaching their audience at various stages of the customer journey, reinforcing the idea that search and display ads work in tandem to achieve broader marketing objectives. IFF has also made similar arguments before the Commission.
1 In Re: Matrimony.com Limited Vs. Google LLC & Others (C ase No. 07 of 2012) & Consumer Unity & Trust Society (CUTS) Vs. Google LLC & Others (C ase No. 30 of 2012), available at: https://cci.gov.in/antitrust/orders/details/746/0
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30 of 2012) and noted that the characteristics, intended use and price of search and nonsearch advertising are different from one another. The Commission in the said matter also noted that Google and Facebook (now Meta) operate in different markets i.e., search advertisement and display advertisement services.
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Assessment of alleged abuse of dominant position by the OPs
Explanation.— For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such condition or price which may be adopted to meet the competition; or
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made by the Informants and the prima facie observations of the Commission, the DG has identified and investigated four allegations against the OPs for examination. The reasoning and findings of the DG, submissions of the parties on these issues and the analysis of the Commission, in this regard, is given in succeeding paragraphs.
A. ‘Take-it-or-leave-it’ 2021 Update by Meta (through WhatsApp)
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postpone making a choice. It was also noted that ‘Not Now’ option was only provided to Android OS smartphone users.
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Help Center for more information and gave users the option to either accept the new terms immediately or explore the changes before agreeing. If the users do not wish to accept the new policy, they were directed to visit Help Center to delete their account. In other words, on 05.01.2021, WhatsApp communicated its users that in order to be able to use the services of WhatsApp, from 08.02.2021 onwards, they are required to mandatorily accept the new terms and policy.
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functionality because of the 2021 Update. Few extracts from this statement are as follows:
“… No one will have their accounts deleted or lose functionality of WhatsApp because of this update. The majority of users who have seen the update have already accepted.
WhatsApp won’t delete your account if you don’t accept the update ….”
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communication tool means they have little or no bargaining power when faced with changes in terms and conditions.
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Therefore, instead of using registered user as the base for calculating percentage of users who have accepted the 2021 Update, it would be more prudent to consider DAU data. As per data furnished by WhatsApp, it had DAUs as at the end of May 2021 (exact DAUs as on 07.05.2021 are not available on record2 ), out of which users had accepted the 2021 Update. Thus, approximately, daily active users had accepted the 2021 Update as against before WhatsApp’s announcement of 07.05.2021 as claimed by WhatsApp. Acceptance of the 2021 Update by active users under the given circumstances or for that matter even , can by no stretch of imagination be considered as an insignificant number.
2 Considering that DAUs of WhatsApp as at the end of April 2021 was the actual DAUs as on 07.05.2021 is likely to be in close range and thus, would not result in a different outcome.
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pressured to accept conditions that prioritize the company’s commercial interests at the expense of user autonomy and degradation of privacy protection (a non-price parameter of competition amongst players), ultimately constituting an abuse of market power.
B. Data collection and sharing of data by Meta (through WhatsApp)
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Information users provide
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them. It has been stated that WhatsApp cannot see shared location information in personal messages between friends, family or co-workers as this is End-to-End Encrypted ( E2ee ). In addition, any location information is typically only retrieved, processed and stored locally on a user’s device. Even if a user does not use WhatsApp’s location-related features, WhatsApp uses IP addresses and other coarse location information (for example, phone number area codes) to estimate users’ general location (for example, city and country). WhatsApp also uses coarse user location information for diagnostics and troubleshooting purposes; and
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violations of WhatsApp’s terms or policies. When a report is made, WhatsApp collects information on both the reporting user and the reported user;
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Information about a business made available to WhatsApp by a business on WhatsApp
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catalogue item descriptions and metadata, orders placed, business hours of operation, and business description);
Information about the business’ customer made available to WhatsApp by a business on WhatsApp
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rely on the Information collected and are essential to provide the WhatsApp Service. It has also submitted a list of essential activities that rely on each type of Information collected.
| Policy Dated 25.08.2016 | Policy Dated 04.01.2021 |
|---|---|
| Usage and Log Information. We collect service-related, diagnostic, and performance information. This includes information about your activity (such as how you use our Services, how you interact with others using our Services, and the like), log files, and diagnostic, crash, website, and performance logs and reports. |
Usage and Log Information. We collect information about your activity on our Services, like service-related, diagnostic, and performance information. This includes information about your activity (including how you use our Services, your Services settings, how you interact with others using our Services (including when you interact with a business), and the time, frequency, and duration of your activities and interactions), log files, and diagnostic, crash, website, and performance logs and reports. This also includes information about when you registered to use our Services; the features you use like our messaging, calling, Status, groups (including group name, group picture, group description), payments or business features; profile photo, "about" information; whether you are online, when you last used our Services (your "last seen"); and when you last updated your "about"information. |
| Device and Connection **Information.**We collect device- |
Device And Connection Information. We collect device and connection-specific |
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specific information when you information when you install, access, or use our install, access, or use our Services. This includes information such as Services. This includes hardware model, operating system information, information such as hardware battery level, signal strength, app version, model, operating system browser information, mobile network, connection information, browser information (including phone number, mobile information, IP address, mobile operator or ISP), language and time zone, IP network information including address, device operations information, and phone number, and device identifiers (including identifiers unique to identifiers. Facebook Company Products associated with the same device or account). We collect device location Location Information . We collect and use information if you use our precise location information from your device location features, such as when with your permission when you choose to use you choose to share your location location-related features, like when you decide to with your contacts, view share your location with your contacts or view locations nearby or those others locations nearby or locations others have shared have shared with you, and the with you. There are certain settings relating to like, and for diagnostics and location-related information which you can find troubleshooting purposes such as in your device settings or the in-app settings, such if you are having trouble with our as location sharing. Even if you do not use our app’s location features. location- related features, we use IP addresses and other information like phone number area codes to estimate your general location (e.g., city and country). We also use your location information for diagnostics and troubleshooting purposes. NA Businesses On WhatsApp . Businesses you interact with using our Services may provide us with information about their interactions with you. We require each of these businesses to act in accordance with applicable law when providing any information to us.
When you message with a business on WhatsApp, keep in mind that the content you share may be visible to several people in that business. In addition, some businesses might be working with third-party service providers (which may include Facebook) to help manage their communications with their customers. For example, a business may give such third-party service provider access to its communications to send, store, read, manage, or otherwise process them for the business. To understand how a business processes your information, including how it might share your information with third parties or Facebook, you should review that
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| business’ privacy policy or contact the business directly. |
|
|---|---|
| NA | Business Interactions. We enable you and third parties, like businesses, to communicate and interact with each other using our services, such as Catalogs for businesses on WhatsApp through which you can browse products and services and place orders. Businesses may send you transaction, appointment, and shipping notifications; product and service updates; and marketing. For example, you may receive flight status information for upcoming travel, a receipt for something you purchased, or a notification when a delivery will be made. Messages you receive from a business could include an offer for something that might interest you. We do not want you to have a spammy experience; as with all of your messages, you can manage these communications, and we will honor the choices you make. |
| We joined the Facebook family of companies in 2014. As part of the family of |
As part of the Facebook Companies, WhatsApp receives information from, and shares information (see here) with, the other Facebook |
companies, WhatsApp receives information from, and shares information with, this family of |
Companies. We may use the information we receive from them, and they may use the information we share with them, to help operate, |
| companies. We may use the information we receive from |
provide, improve, understand, customize, support, and market our Services and their |
| them, and they may use the information we share with them, |
offerings, including the Facebook Company Products. This includes: |
| to help operate, provide, improve, understand, customize, |
• helping improve infrastructure and delivery systems; |
support, and market our Services and their offerings. This includes |
• understanding how our Services or theirs are used; |
| helping improve infrastructure and delivery systems, |
• promoting safety, security and integrity across the Facebook Company Products, |
| understanding how our Services or theirs are used, securing |
e.g., securing systems and fighting spam, threats, abuse, or infringement activities; |
| systems, and fighting spam, abuse, or infringement activities. and the other companies in the Facebook family also may use information from us to improve your experiences within their services such as making product suggestions (for example, of |
• improving their services and your experiences using them, such as making suggestions for you (for example, of friends or group connections, or of interesting content), personalizing features and content, helping you complete purchases and transactions, and showing relevant offers |
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| friends or connections, or of | and ads across the Facebook Company |
|---|---|
| interesting content) and showing | Products; and |
| relevant offers and ads. However, | • providing integrations which enable you to |
| your WhatsApp messages will | connect your WhatsApp experiences with |
| not be shared onto Facebook for | other Facebook Company Products. For |
| others to see. In fact, Facebook | example, allowing you to connect your |
| will not use your WhatsApp | Facebook Pay account to pay for things on |
| messages for any purpose other | WhatsApp or enabling you to chat with your |
| than to assist us in operating and | friends on other Facebook Company |
| providing our Services. | Products, such as Portal, by connecting your WhatsApp account. |
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is vague, broad, and open-ended, relying on terms such as "includes," "such as," and "for example." This creates uncertainty regarding the specific categories of information being collected and shared. Phrases like "service-related information," "mobile device information," and "interactions with others" lack clear definitions, leaving room for expansive interpretations that could extend beyond what users reasonably understand. The use of non-exhaustive lists in the policy suggests that WhatsApp retains the flexibility to expand the scope of data collection at any time and justify it as being covered under previous policies.
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effective choice is essential for ensuring fair competition and informed consumer decision-making.
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Therefore, collection of both precise and general location is essential to the operation of the WhatsApp Service.
WhatsApp clarifies that while using its business messaging features, the user is in control of what they choose to do and share. Messaging a business using the WhatsApp Service continues to remain optional ( i.e., users can contact businesses using other means).
As part of the Meta Companies, WhatsApp receives information from, and shares information (see here) with, the other Meta Companies. We may use the information we receive from them, and they may use the information we share with them, to help operate, provide, improve, understand, customize, support, and market our Services and their offerings, including the Meta Company Products. This includes:
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What information does WhatsApp share with the Meta Companies?
WhatsApp currently shares certain categories of information with its parent company, Meta, and the Meta Companies.
If you use WhatsApp Messenger
The information we share with the other Meta Companies includes your account registration information (such as your phone number), transaction data (for example, if you use Facebook Pay), service-related information, information on how you interact with businesses when using our Services, mobile device information, your IP address, and may include other information identified in the Privacy Policy section entitled ‘Information We Collect’ or obtained upon notice to you or based on your consent.
If you use the WhatsApp Business app
The information we share with the other Meta Companies includes your account registration information (such as your phone number and information from your business profile and product catalog), transaction data (for example, if you use Facebook Pay), service-related information, information on how you interact with customers when using our Services, mobile device information, your IP address, and may include other information identified in the WhatsApp Business Terms of Service section entitled ‘Our Data Practices - Other Information’ or obtained upon notice to you or based on your consent.
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We limit the information we share with Meta in important ways. For example, we will always protect your personal conversations with end-to-end encryption, so that neither WhatsApp nor Meta can see these private messages. We don’t keep logs of who everyone’s messaging or calling and can’t see your shared location so we cannot and do not share this with Meta. We need your contacts to provide the service, but don’t share your contacts with Meta. You can learn more about some of these limitations here.
23. The specific types of user data that WhatsApp may share with other Meta Companies are described publicly by WhatsApp in its Privacy Policy and in a publicly available FAQ linked within the Privacy Policy and may include:
24. The specific user data WhatsApp shares will depend on the development and availability of new products and features and how users decide to use them. Not all data described in the “Information We Collect” section of the Privacy Policy is currently being shared with the other Meta Companies.
25. As an example, WhatsApp shares certain data with Meta when Meta (or certain Meta Companies) acts as a service provider. WhatsApp works with these Meta Companies to support its services, such as by providing technical infrastructure, delivery and other systems; marketing WhatsApp's services, conducting surveys and research; protecting the safety, security, and integrity of users and others; and assisting with customer service.
27. To meet growing demand to enable businesses to build their businesses and reach their customers globally, there are plans to provide businesses with new features to engage with customers and support their economic growth, while taking consistent measures to reinforce the private nature of the
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platform. These include features WhatsApp is developing to enable customer service, discover a business, and shop online. WhatsApp has described these features further in its FAQs. Many of these features rely on Meta services, so as WhatsApp develops and launches them, it may share information with Meta when a user chooses to engage with a business using one of those features. If a business were to choose to use Meta to store WhatsApp messages securely and to respond to customers, Meta will only use data at the instruction of the business and on the business’ behalf. These business features are entirely optional, and users always have the option of deciding whether or not to communicate with businesses. WhatsApp will make it clear within the WhatsApp Service when a user is communicating with any business that uses a third-party (including Meta) to facilitate messaging with the user. WhatsApp’s philosophy is that users should be in control when messaging a business. It is their choice whether or not to reach out or engage with a business, and WhatsApp will protect their private information.
28. WhatsApp limits the information it shares with other Meta Companies in important ways. WhatsApp does not share the following information with other Meta Companies:
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It has been further averred that if the
user chooses to engage with these features, WhatsApp informs them about these features and the data that may be shared with Meta through transparency screens.
.
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essential, however, the policy puts no such restriction and contractually puts WhatsApp in a position to share unrestricted data with other Meta companies. IFF has further pointed out that it has been claimed by the OPs that WhatsApp does not share individuals’ phone numbers with Meta. However, the FAQ screenshot extracted at para 174 shows that phone numbers are shared with Meta.
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deprived of meaningful autonomy over their data and are pressured into accepting terms they cannot practically negotiate or refuse. The data-sharing arrangement without user choice is also fundamentally unfair as it degrades the quality of service by diminishing privacy standards, which are an essential non-price parameter of competition. This combination of coercive imposition and unfair reduction in service quality underscores the exploitative nature of WhatsApp’s conduct, which harms both consumer welfare and market competition.
C. Denial of Market Access and Leveraging by Meta
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new entrant resulting in denial of market access in contravention of the provisions of Section 4(2)(c) of the Act; and the conduct of leveraging its dominant position in the market for OTT messaging app through smartphone in India by Meta (through WhatsApp) to protect its market share in the online display advertising market tantamount to violating the provisions of Section 4(2)(e) of the Act.
Third Party Submissions
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achieving the business goals of clients. This can only be achieved with user data like gender, income group, location. Regarding the WhatsApp-Facebook alliance after the 2021 policy update, Collectcent stated that it will definitely impact the rest of the advertising companies' revenues (Indian or international) big time directly.
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indirect impact on our demand & cost as more advertisers move to Facebook due to its audience targeting capability (which is enhanced due to this data) and it may need us to integrate with third party DMPs (Data Management Platforms) to have competitive targeting capability which will result in more cost to us.
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Regarding the WhatsApp-Facebook alliance after 2021 policy update, Twitter stated that
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valuable to advertisers when combined with inventory that has a high reach among different audience types, as this allows for relatively large numbers of very specific audiences to be targeted.
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obtaining the data necessary to target advertising and measure its impact. New entrants and small to medium-sized platforms have a greater challenge in providing advertisers with a compelling, measurement-based reason to shift their budgets. Regulation can also serve as a barrier to entry.
Its other properties, Instagram and WhatsApp, each have well over a billion users themselves. Facebook is able to collect a wide array of data about its users, both through first-party data collection through its family of apps’ many features (content, chats, events, photos, marketplace purchasing, etc. ), as well as third-party collection of purchase and website / app activity, for example through its conversion pixels, ‘like’ buttons, and Facebook login functionality.
“ In addition, we have been managing investigations and lawsuits in Europe, India, and other jurisdictions regarding the August 2016
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update to WhatsApp's terms of service and privacy policy and its sharing of certain data with other Facebook products and services, including a lawsuit currently pending before the Supreme Court of India, and also became subject to government inquiries and lawsuits regarding the 2021 update to WhatsApp's terms of service and privacy policy. If we are unable to transfer data between and among countries and regions in which we operate, or if we are restricted from sharing data among our products and services, it could affect our ability to provide our services, the manner in which we provide our services or our ability to target ads, which could adversely affect our financial results .”
(Emphasis supplied)
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Business Manager relies on the Meta Business Manager to work, and hence requires a Facebook account. Thus, they are required to accept the Meta terms of Service as well as privacy Policy of Facebook at the time of creation of profile. Thus, by accepting Facebook’s Terms of Service and privacy policy, users / businesses agree to share data with Meta.
“… You understand and agree that WhatsApp collects, stores, and uses: (a) information from your business account and registration; (b) usage, log, and functional information generated from your use of our Business Services; (c) performance, diagnostics, and analytics information; (d) information related to your technical or other support requests; and (e) information about you from other sources such as other WhatsApp users, businesses, third-party companies, and the other Facebook Companies. We may share this information with the Facebook Companies, and we and the Facebook Companies will use all the information we have to develop, operate, provide, improve, understand, customize, support, and market our Business Services, our other services, and the services and products of the Facebook Companies. It is not possible to opt-out of these data practices .”
(Emphasis added)
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localized storage options. When a business or business service provider chooses to use Meta to securely host the WhatsApp Business API, Meta acts as a service provider to such business and acts as directed by the business. A business might designate a number of employees, or even other vendors, to store, process and respond to customer communications. A business’s third-party service provider could also include Facebook. When a business chooses Facebook as its third-party service provider, Facebook cannot - on its own initiative - use the customer communications to show the ads that the user may see. The business will however be able to use the content of message threads they receive for their own marketing purposes, which may include advertising on Facebook.
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In this
regard, as already stated, the operational text of the 2021 Update allows WhatsApp to share data with Meta for purposes such as marketing its own services and promoting offerings across Meta company products. This includes enhancing Meta’s services and improving user experiences by making suggestions (e.g., recommending friends or group connections, or highlighting interesting content), personalizing features and content, assisting with completing purchases and transactions, and displaying relevant offers and advertisements across Meta’s platforms. There is no such restriction in the Policy and the current limited sharing, assuming to be true, gives unilateral ability to WhatsApp to expand scope of data sharing.
Presence of Meta in the Display Advertisement Market
No. of Impressions sold in India (in billion)
| Company | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 |
|---|---|---|---|---|---|---|
| Facebook(A) | ||||||
| Instagram(B) | ||||||
| Meta (Total | ||||||
| A+B) |
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| Company | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 |
|---|---|---|---|---|---|---|
| ASSPL | ||||||
| Snap | ||||||
| InMobi | ||||||
| OpenX | ||||||
| Magnite | ||||||
| Tyroo | ||||||
| Affle |
Source: Investigation Report data collected from the respective parties
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Advertisement Revenue of players in the online display advertisement
market in India
| (in |
million USD) |
|||||
|---|---|---|---|---|---|---|
| Company | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 (upto Q2) |
| Meta | ||||||
| Snap | ||||||
| *ASSPL | ||||||
| *InMobi | ||||||
| *#Collectcent | ||||||
| *#Xapads | ||||||
| *#Ally | ||||||
| *Affle |
Source: Investigation Report data collected from the respective parties
*INR figures converted into USD using average conversion rates for 1 INR = 0.0149 USD (2016), 0.0154 USD (2017), 0.0146 USD (2018), 0.0142 USD (2019), 0.0135 USD (2020), and 0.0135 USD (2021).
# Revenue figures for 2016 denotes advertising revenue for financial year 2016-17, 2017 denotes 2017-18, and so on.
** Data for the financial year 2021-2022
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position in the market3 . It is further noted that advertisement revenue of Meta increased nearly over 2015 to 2021 ( i.e., from USD to USD
). None of the rivals have been able to match this growth in advertisement revenue of Meta.
3 It is also noted that Pinterest do not display advertising on the platform in the country and accordingly generate no revenue in India. SVG Media has submitted that the company is under closure phase and hence it is not able to submit data regarding number of impressions sold. Taboola has submitted that it is not in the business of providing online display advertisement.
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marketing spend is directed towards users with the highest likelihood of conversion. Every advertiser aims to maximize the return on investment (ROI) within their advertising budgets, which requires reaching audiences that have a strong propensity to take the desired actions, such as purchasing a product or engaging with content. Without access to detailed user data, this level of precise targeting becomes impossible. The ability to analyse parameters such as user behaviour, preferences, and demographics ensures that advertising spend is optimized, avoiding wasted resources on uninterested audiences. The aggregation and utilization of data are therefore essential for delivering effective advertising campaigns and achieving optimal business outcomes.
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| Year | Number of advertisers |
|---|---|
| 2015 | |
| 2016 | |
| 2017 | |
| 2018 | |
| 2019 | |
| 2020 | |
| 2021 | |
| 2022(01.01.2022- 30.06.2022) |
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advertising depends on the scope, size, and diversity of the data set held by the media provider. Meta gains an advantage by collecting extensive first-party data directly from its users which is shared across services, as well as additional thirdparty data through various tools, giving it a comprehensive data set. This vast data pool is a key factor behind Meta's un-assailable position in the online display advertising market and acts as a barrier to entry for new competitors, as they are unable to match the scale of data Meta possesses.
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access to comprehensive user data for targeted advertisement and other players are not in a position to match them, thus, putting them in a disadvantageous position. UK CMA Report referred to in this order also corroborates the same. The Commission also notes that Google and Meta operate in different online advertisement segments i.e., while Meta operates in online display advertisement, Google, though present in display advertisement, is primarily active in online search advertisement.
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their own offers, rather than by competing less or discontinuing their services. In this regard, the Commission is of the view that such economic justification has very high threshold to be accepted under the Act and the onus for the same lies on the entity under investigation. In the present case, it has not been met. As already examined in detail above, the conduct of Meta provides significant competitive edge over its rivals in the display advertisement market thereby resulting in competition concerns.
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to adapt and enhance its advertising offerings continuously. This competitive advantage, enabled by combining user data from multiple services, reinforces Meta’s stronghold on the display advertisement market. Such access to vast user data allows Meta to tailor advertisements and user experiences in ways competitors cannot.
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data across its ecosystem in ways that competitors cannot replicate. This bundling strategy, facilitated by privacy policies, results in coercive effects on users who must accept cross-platform data sharing, and on advertisers who are forced to stay within Meta's ecosystem for effective targeted advertising.
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where a dominant firm’s conduct in one market can have exclusionary effects in another, related market. In multi-product ecosystems like Meta’s, services are closely integrated in terms of functionality, data, and target groups. As already elaborated, Meta’s dominance in the OTT messaging market (through WhatsApp) allows it to collect vast amounts of user data. This data is shared across its ecosystem, including its display advertisement services (Facebook, Instagram). By combining and using this data, Meta can offer highly targeted ads, which competitors in the display advertising market cannot easily match due to their lack of access to similar data. As a result, this creates a denial of market access for these rivals, who cannot compete effectively for advertisers.
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OTT messaging apps through smartphones to protect its position in the online display advertising market and the same is in contravention of Section 4(2)(e) of the Act.
Preliminary submissions by the OPs
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of the Act but also the global jurisprudence in this regard. The CJEU decision in TeliaSonera relied upon by WhatsApp also corroborates the same.
“An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto”.
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Power to issue interim orders
Section 33
Where during an inquiry, the Commission is satisfied that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been committed and continues to be committed or that such act is about to be committed , the Commission may, by order, temporarily restrain any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to such party, where it deems it necessary.
ORDER
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Remedies
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competition moving forward. The ultimate aim is to re-establish conditions that revive the competitive process, allowing rivals to compete on merit. Thus, the competition authority has the inherent powers to direct necessary measures to restore and promote competition in the relevant market. Recognising these principles, Section 27(g) of the Act also empowers the Commission to issue such other orders or directions, as it may deem fit. Therefore, in view of the anti-competitive harm elaborated in this order and for the purpose of addressing such harm, the OPs are further directed to implement the following directions:
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247.2.4 All future policy updates shall also comply with these requirements.
Imposition of Penalty
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conditions, denial of market access, leveraging, etc. Further, Competition Act being an independent statute in India, the conduct of the entities needs to be examined as per the provisions of the same and the plea taken that they are in compliance with existing data protection and privacy legislation does not absolve them of the contraventions found under the Competition Act.
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Explanation I.—For the purposes of this clause, the expression "turnover" or "income", as the case may be, shall be determined in such manner as may be specified by regulations.
Explanation 2. - For the purposes of this clause, "turnover" means global turnover derived from all the products and services by a person or an enterprise.
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05.07.2021 have submitted that the President of WhatsApp, who is responsible for the general management and control of the business and affairs of WhatsApp and the general supervision and direction of all its officers, employees, and agents, is also one of the Executives of Meta. Further, another executive at Meta is designated as Chief Product Officer and is responsible for leading Facebook products including both WhatsApp and Messenger services. It is further noted that WhatsApp does not maintain stand-alone financial statements and instead its assets/turnover are included in the financial statements of Meta. Thus, Meta enjoys full control over the activities and operations of WhatsApp. In view of the foregoing, the Commission is of the view that relevant turnover of both the entities should be considered for computation of penalty and the averments of the OPs in this regard are rejected.
(presumably as the OTT messaging services are provided to users at zero monetary cost). Further, it is noted from Meta’s submissions that its revenues from online digital display advertising in India is the relevant turnover for computation of penalty. Meta has furnished details related to its revenues from online digital display advertising in India. Therefore, the Commission observes that relevant turnover in the present matter is the turnover derived by WhatsApp in India and turnover derived by Meta from display advertisement services in India.
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This data was furnished by the OPs on 14.11.2024 after seeking an extension of three weeks. Based on the said data, relevant turnover of WhatsApp and Meta as determined above for the CYs 2020, 2021 and 2022 is tabulated hereunder:
(In INR crore)
Relevant
Relevant Turnover Turnover of Total Relevant
Year of WhatsApp (A) Meta (B) Turnover (A+B)
CY 2020
CY 2021
CY 2022
Total
Average of
three years
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the investigation, first-time contravention of the Act by the OPs, benefits to consumers and advertisers, as well as pro-competitive effects, etc . The OPs have also averred that
The Commission has given a thoughtful
consideration to these factors and notes that WhatsApp users started receiving notifications relating to mandatory acceptance of 2021 Update from 05.01.2021 and on 07.05.2021, WhatsApp announced that no user would have their account deleted or lose functionality due to non-acceptance of the 2021 Update. Meta has also asserted that user
data is
In view of the same, the Commission decides to reduce the amount of penalty as determined in previous para by . The Commission do not find any aggravating factor in the present matter.
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of Section 57 of the Act read with Regulation 36 of the General Regulations 2024. For convenience, it is directed that the confidential version of this order may be provided to such ring members/ individuals through one of the ring members, who may then share the same with the other ring members nominated by the OPs.
Sd/(Ravneet Kaur) Chairperson
Sd/(Anil Agrawal) Member
Sd/(Deepak Anurag) Member
New Delhi Date: 18 / 11 / 2024
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Colour shows how this judgement treated each authority
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5 provisions across 1 enactments
WhatsApp LLC
Meta Platforms, Inc.
Ravneet Kaur
Anil Agrawal
Deepak Anurag
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
