In a notice on its website, WhatsApp said it was continuing to remind those who haven’t had the chance to review and accept the terms, and that after a period of several weeks, “the reminder (that) people receive will eventually become persistent”. The new WhatsApp notice, tech and legal experts said, could be found to be in violation of the country’s laws on abuse of dominant position and is likely to be challenged before a court. “What WhatsApp is essentially doing here is that you either share your data with it or you will not be able to use its services. This is coercion disguised under the garb of ‘consent’, especially considering it is a dominant player,” said Prasanth Sugathan, legal director, SFLC.in.
“There are precedents from US courts, where modification of terms even if it’s a free service, to the detriment of users may be struck down as unconscionable. This ‘take-it-or-leave-it’ may not be a sound argument merely because a service is free, more so when the entity itself has invited users to its platforms on the basis of terms of usage which it then seeks to modify,” said Supreme Court advocate N S Nappinai, also founder of Cyber Saathi. Apart from these two cases, the Competition Commission of India is investigating Facebook for abuse of dominant position. The latest WhatsApp decision could land it into further trouble with the courts, Salman Waris, founder and partner at TechLegis said.