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Abstract

The conception that many people in India do not care about their informational privacy needs to be corrected to the conception that people in India care, just that they lack the effective choice and information to exercise their care. This has become apparent from WhatsApp's changed privacy policy, which was implemented only in India at the exclusion of all other countries and mandated that users forgo privacy if they continued using WhatsApp.

The ability of the companies/WhatsApp to infringe on the consumers' privacy owing to their market power can materialise under various theories of harm. The present study aims at two things: First, the study aims to decipher various parameters of privacy through existing theories of harm under section 4 of the Indian Competition Act to define what privacy means for competition law and how those theories of harm can be addressed ex-ante. The parameters of privacy so deciphered have been reinforced through the K.S Puttaswamy judgement, which made privacy a fundamental right under the Indian Constitution. These parameters of privacy denote an outer boundary within which all companies with market power must function from the perspective of competition law. Second, it proposes an institutional framework that establishes how the privacy of an individual impinged on by dominant companies can be brought under the ambit of competition law. The institutional framework is in the form of an ex-ante regime. After deriving the parameters of privacy from theories of harm, the author has suggested how such theories of harm can be contained ex-ante by imposing obligations on the companies in two ways: Software and Contract. The ex-ante framework, called privacy by design, helps develop a framework for the regulator to impose such obligations on companies designated as companies of paramount significance.

Digital Object Identifier (DOI)

https://doi.org/10.55496/HCHQ3486

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