Memorial Respondent

TEAM CODE: T33
3RD DHARMASHASTRA NATIONAL LAW UNIVERSITY INTRA MOOT COURT

COMPETITION
3RD DHARMASHASTRA NATIONAL LAW UNIVERSITY INTRA MOOT COURT COMPETETION, 2021
17TH – 18TH JULY 2021
BEFORE
THE HON’BLE HIGH COURT OF DELHI UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
IN THE MATTER CONCERNING
RAMESH KUMAR (PETITIONER)
V,
WHATSAPP AND OTHERS (RESPONDENT)
ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HON’BLE HIGH COURT OF DELHI
i|Page
MEMORIAL
MEMORIAL FOR RESPONDENT
ON BEHALF OF RESPONDENT
COMPETITION
TABLE OF CONTENTS
INDEX OF AUTHORITIES ............................................................................................................... iii
Cases .................................................................................................................................................. iii
Statutes .............................................................................................................................................. iii
Other Authorities............................................................................................................................... iii
Rules .................................................................................................................................................. iv
Regulations ........................................................................................................................................ iv
Journals ............................................................................................................................................. iv
U.S.A Case Laws ............................................................................................................................... vi
Books ................................................................................................................................................. vi
List of Abbreviations ......................................................................................................................... vi
STATEMENT OF JURISDICTION ................................................................................................. vii
STATEMENT OF FACTS ................................................................................................................ viii
STATEMENT OF ISSUES .................................................................................................................. x
SUMMARY OF ARGUMENTS ......................................................................................................... xi
ARGUMENT ADVANCED ................................................................................................................. 1
Ⅰ. THE WRIT FILED IS NOT MAINTAINABLE BEFORE THE HIGH COURT .................. 1
A. DISPUTES ARISING OUT OF PRIVATE CONTRACTS ARE NOT AMENABLE TO
WRIT JURISDICTION ................................................................................................................. 1
Ⅱ THE ARGUMENT OF 'BREACH OF PRIVACY' IS NOT JUSTIFIABLE IN THE
ABSENCE OF LAW DEFINING THE LIMIT OF PRIVACY ................................................... 3
A. INDIA DOES NOT HAVE COMPREHENSIVE, EXPLICIT AND DEDICATIVE DATA
PROTECTION LEGISLATION SO AS TO GOVERN THE RESPONDENT UPDATED
PRIVACY POLICY ........................................................................................................................ 3
B. THE RESPONDENT IS COMMITTED TO PROTECT THE PRIVACY OF CITIZENS
OF INDIA WHICH CAN BE SEEN BY ITS END-TO-END ENCRYPTION FEATURE ....... 4
Ⅲ THE APPLICATION OF PRIVACY POLICY DOES NOT CONSTITUTES A
VIOLATION OF PRINCIPLES OF ARTICLE 14 ....................................................................... 5
A. ECONOMIC TRAITS OF USER DATA AMELIORATE CONCERNS THAT SUCH
DATA CAN BE MANIPULATED FOR ANTICOMPETITIVE GAINS .................................... 5
B. THE IMPUGNED PRIVACY POLICY IS NOT ARBITRARY ........................................... 8
Ⅳ THERE IS NO ABSENCE OF A LEGAL FRAMEWORK TO REGULATE WHATSAPP
............................................................................................................................................................ 9
A. THE IMPUGNED PRIVACY POLICY IS IN CONFORMITY WITH THE EXISTING
RULES AND REGULATIONS OF INDIA .................................................................................. 9
PRAYER .............................................................................................................................................. xii
ii | P a g e
COMPETITION
INDEX OF AUTHORITIES
Cases
ABL International Ltd v. Export Credit Guarantee Corporation of India Ltd (2005) 10 SCC
495 .......................................................................................................................................... 2
Authorized Officer, State Bank of Travancore v. Mathew K.C (2018) 2 SCC 41 .................... 2
Bareilly Development Authority Vs. Ajay Pal Singh (1989) 2 SCC 116 .................................. 1
Binny Limited & Anr. v/s. V. Sadasivan & Ors (2005) 6 SCC 657 .......................................... 2
Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and Others 2019 (6)
SCALE 70 .............................................................................................................................. 1
Chandra Kumar v. Union of India (1997) 3 SCC 261 ............................................................... 2
Commissioner of Income Tax v. Chhabil Das Agarwal (2014) 1 SCC 603 .............................. 2
Divisional Forest Officer Vs. Vishwanath Tea Company Ltd (1981) 3 SCC 238 .................... 1
Dwarikesh Sugar Industries Ltd v. Prem Heavy Engineering Works P. Ltd (1997) 6 SCC 450
................................................................................................................................................ 2
Federal Bank Ltd. v/s. Sagar Thomas & Ors (2003) 10 SCC 733 ............................................. 2
K K Saksena v International Commission on Irrigation and Drainage (2015) 4 SCC 670 ....... 1
K.K. Saxena v/s. International Commission on Irrigation & Drainage (2015) 4 SCC 670 ....... 2
K.S. Puttaswamy&Anr. v. Union of India (2017) 10 SCC 1 ..................................................... 3
Karmanya Singh Sareen v. Union of India, 233 (2016) DLT 436. ............................................ 1
Statutes
Section 79, Information Technology Act, 2000......................................................................... 4
Other Authorities
Goldfarb, Avi 2014. What is different about online advertising? Review of Industrial
Organization 44(2): 115-129 .................................................................................................. 6
Goldfarb, Avi and Catherine Tucker 2010. Privacy Regulation and Online Advertising,
Management Science 57(1): 57-71 ......................................................................................... 6
Goldfarb, Avi and Catherine Tucker 2011. “Online Advertising.” In The Internet and Mobile
Technology Advances in Computing, 81, 290–337 ................................................................ 6
Graef, Inge 2015. Market Definition and Market Power in Data: The Case of Online Platforms,
World Competition, 38(4): 473–505 ...................................................................................... 6
I. N. Walden and R. N. Savage, “Data Protection and Privacy Laws: Should Organizations Be
Protected? “The International and Comparative Law Quarterly, Vol. 37, No. 2 (1988): 337-
347 .......................................................................................................................................... 3
iii | P a g e
COMPETITION
Lambrecht, Anja and Tucker, Catherine 2015. Can Big Data Protect a Firm from Competition?
................................................................................................................................................ 6
Salinger, Michael A. and Robert J. Levinson 2015. Economics and the FTC’s Google
Investigation, Review of Industrial Organization, 46: 25-57 ................................................. 7
Rules
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
................................................................................................................................................ 4
Rule 5(4), Information Technology (Reasonable Security Practices and Procedures and
Sensitive Personal Data or Information) Rules 2011 ............................................................. 9
Sensitive Personal Data or Information) Rules 20 ................................................................. 9
Regulations
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
Protection of Individuals with Regard to the Processing of Personal Data and on the Free
Movement of Such Data, 1995 O.J. (L 281) 31 (repealed 2016) ........................................... 3
Graham Greenleaf and Sinta Dewi Rosadi, “Indonesia’s data protection Regulation 2012: A
brief code with data breach notification,” Privacy Laws & Business International Report,
Issue 122, (2013): 24-27......................................................................................................... 3
Journals
Averitt, Neil and Robert H. Lande 1997. Consumer Sovereignty: A Unified Theory of Antitrust
and Consumer Protection Law, Antitrust Law Journal 65: 713-756 ..................................... 5
Bessen, James and Michael J. Meurer 2014. The Direct Costs from NPE Disputes, Cornell Law
Review 99: 387-424 ................................................................................................................ 5
Cooper, James C. 2013. Privacy and Antitrust: Underpants Gnomes, the First Amendment, and
Subjectivity, George Mason Law Review 20(4): 1129-1146 ................................................. 5
Draganska, M., W. R. Hartmann, and G. Stanglein (2014). Internet versus television
advertising: A brand-building comparison. Journal of Marketing Research 51 (5), 578{590
................................................................................................................................................ 7
iv | P a g e
COMPETITION
Edlin, Aaron S. and Robert G. Harris 2013. The Role of Switching Costs in Antitrust Analysis:
A Comparison of Microsoft and Google, Yale Journal of Law and Technology 15: 169-213
................................................................................................................................................ 5
Endeley, R.E. (2018) End-to-End Encryption in Messaging Services and National Security—
Case of WhatsApp Messenger. Journal of Information Security, 9, 95-99 ........................... 4
Evans, David S. 2009. The online advertising industry: Economics, evolution, and privacy, The
Journal of Economic Perspectives 23 (3), 37–60 .................................................................. 5
Fudenberg, Drew and Jean Tirole 1986. A "Signal-Jamming" Theory of Predation, The RAND
Journal of Economics, 17(3): 366-376 ................................................................................... 6
Jisha, K. and Jebakumar (2014) A Trend Setter in Mobile Communication among Chennai
Youth. IOSR Journal of Humanities and Social Science (IOSR-JHSS), 19, 01-06 ............... 4
Jones Harbour, Pamela and Tara Isa Koslov 2010. Section 2 in a Web 2.0 World: An Expanded
Vision of Relevant Product Markets, Antitrust Law Journal 76: 769-797 ............................ 6
K. Berlin, S.S. Dhenakaran "Adoption of Crypto Encryption Techniques in Different Scenario
" in International Journal of Advance Research in Computer Science and Management
Studies, Volume 5, Issue 8, August 2017 .............................................................................. 4
Lichtman, Doug and Mark A. Lemley 2007. Rethinking Patent Law’s Presumption of Patent
Validity, Stanford Law Review 60: 45-72 .............................................................................. 6
Newman, Nathan 2014. Search, Antitrust and the Economics of the Control of User Data, Yale
Journal on Regulation 31: 401-452. ...................................................................................... 6
Nill, Alexander, and Robert J. Aalberts (2014), “Legal and Ethical Challenges of Online
Behavioural Targeting in Advertising,” Journal of Current Issues and Research in
Advertising, 35 (2), 126–46. ................................................................................................... 8
Ohlhausen, Maureen K. and Alexander P. Okuliar 2015. Competition, Consumer Protection,
And the Right Approach To Privacy, Antitrust Law Journal 80: 121-156. ........................... 7
Peter Swire & DeBrae Kennedy-Mayo, How Both the EU and the U.S. Are “Stricter” than
Each Other for the Privacy of Government Requests for Information, 55 Emory L.J. 617,
642 (2017). ............................................................................................................................. 3
Rochet, Jean Charles and Jean Tirole 2002. Cooperation among Competitors: Some Economics
of Payment Card Associations, RAND Journal of Economics, 33: 1-22 ............................... 7
Rodgers, Shelly, and Esther Thorson (2000), “The Interactive Advertising Model: How Users
Perceive and Process Online Ads,” Journal of Interactive Advertising, 1 (1), 41–60 ........... 7
Rodgers, Shelly, and Esther Thorson (2000), “The Interactive Advertising Model: How Users
Perceive and Process Online Ads,” Journal of Interactive Advertising, 1 (1), 41–60. .......... 7
v|Page
COMPETITION
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193–
95 (1890) ................................................................................................................................ 3
Sarker, G.R. (2015) Impact of WhatsApp Messenger on the University Level Students: A
Sociological Study. International Journal of Natural and Social Sciences, 2, 118-125 ......... 4
Tucker, Catherine 2013. The Implications of Improved Attribution and Measurability for
Antitrust and Privacy in Online Advertising Markets, George Mason Law Review 20: 1015-
1054 ........................................................................................................................................ 7
Varian, H. R. (2014). Big data: new tricks for econometrics. The Journal of Economic
Perspectives, 3-27 .................................................................................................................. 7
Varian, Hal R. 2014. Big Data: New Tricks for Econometrics, Journal of Economic
Perspectives 28(2): 3-28......................................................................................................... 7
Wernerfelt, B. (1984). A resource-based review of the firm. Strategic management journal 5
(2), 171-180 ............................................................................................................................ 7
William McGeveran, Friending the Privacy Regulators, 58 Ariz. L. Rev. 959, 961 (2016). .... 3
U.S.A Case Laws
Smith v. Maryland, 442 U.S. 735 (1979) ................................................................................. 10
Books
Dr. Amit Ludri, Law on protection of personal & official information in India, The Bright Law
house, New Delhi, 1st Edition, (2010). .................................................................................. 3
List of Abbreviations
IT: Information Technology ...................................................................................................... 9
Ltd: Limited................................................................................................................................ 1
U.S. A: United States of America .............................................................................................. 3
vi | P a g e
COMPETITION
[STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
The Counsel for the Respondents humbly submits to this Hon’ble Court’s Jurisdiction under
Article 226 of the Constitution of India.
The Respondent would like to humbly submit that this writ petition is not maintainable. It set
forth the facts and laws on which the claims are based.
vii | P a g e
COMPETITION
[STATEMENT OF FACTS]
STATEMENT OF FACTS
Ⅰ. In 2009 when the digital era was ushering in, a new messaging application named ‘WhatsUp’
was launched by the company ‘Alphabeta’ in Americca. The prime objective of launching the
messaging application was to ensure affordable exchanges of messages with the limited role of
the intermediary. One of the messaging applications’ USB was its End-to-End encryption
model (E2E) which was famous for its privacy features.
Ⅱ. WhatsUp easily captured the Indian Market, with every 9 out of 10 citizens of Indiana using
WhatsUp for connecting (either for social purpose or for business purpose). ‘Tapbook,’ one
of the premier social media websites across the globe with users around 400 million, seeing the
opportunity and market share of WhatsUp bought the company Alphabeta. And made WhatsUp
an ancillary organization of its Social Media Website, ensuring that WhatsUp acted
independently of Tapbook.
Ⅲ. In Pursuance of Policy Changes WhatsUp brought a change in its privacy policy to this
goal, which will come into effect from 15th May 2021. The privacy policy was based on a take-
it-or-leave-it policy, meaning either the user can accept them or stop using the application.
The new privacy policy of WhatsUp brought about the following changes
1) WhatsUp can share the information about the user with a third-party entity
2) Users who are using business-profile under WhatsUp might get notifications from third-
party business who are using Tapbook.
3) If the user is using the Services with Tapbook Company Products, we may receive
information about you from them; for example, if you use the WhatsUp share button on a news
service to share a news article with your WhatsUp contacts, groups, or broadcast lists on our
Services, or if you choose to access our Services through a mobile carrier’s or device provider’s
promotion of our Services
4) When the user messages with a business on WhatsUp, keep in mind that the content shared
by the user may be visible to several people in that business. In addition, some businesses might
be working with Tapbook to help manage their communications with their customers. For
example, a business may give Tapbook access to its communications to send, store, read,
manage, or otherwise process them for the business.
viii | P a g e
COMPETITION
[ STATEMENT OF FACTS]
Ⅳ. Interestingly, the new Privacy Policy made by WhatsUp is not applicable in the European
Countries, according to some scholar this is because of the existence of General Data Protection
Regulation (GDPR)
Ⅴ. After the new privacy policy came into existence, on 19th May, a small-time stationery shop
owner Mr. Ramesh moved to the High Court of Indraprasth under Article 226. Mr. Ramesh is
challenging the validity of WhatsUp new privacy policy because the new privacy policy has a
monopolizing tendency and is violative of tenets of Article 14.
Ⅵ. Mr. Ramesh argues that WhatsUp is sharing his personal conversation with a third party
(Tapbook) and thus creating a monopoly in their favor. Mr. Ramesh also argues it is a violation
of his privacy rights.
ix | P a g e
COMPETITION
[STATEMENT OF ISSUES]
STATEMENT OF ISSUES
ISSUE Ⅰ: -Whether the petition is maintainable before the High Court of Indraprasth?
ISSUE Ⅱ: - Whether the argument of 'breach of privacy' justifiable in the absence of law
defining the limit of privacy?
ISSUE Ⅲ: - Whether the application of privacy policy constitutes a violation of principles of

Article 14?
ISSUE Ⅳ: - Whether presence of data protection law could have avoided the application of
new privacy policy?
x|Page
COMPETITION
[SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
Ⅰ THE WRIT FILED IS NOT MAINTAINABLE BEFORE THE HIGH COURT
It is Humbly submitted by the respondents that it is settled law that writ jurisdiction under
Article 226 of the Constitution of India is not properly invoked to address a dispute over a
contractual relationship between private parties. Disputes arising out of private contracts-
including the enforceability of contracts are not properly the subject of writ jurisdiction. It is
humbly submitted by the respondent that the petitioner has not exhausted his alternate remedies
in case of breach of contract.

ABSENCE OF LAW DEFINING THE LIMIT OF PRIVACY
It is humbly submitted by the respondent that India does not have comprehensive, explicit and
dedicative data protection legislation so as to govern the respondent updated privacy policy.
Additionally, it is also submitted that the respondent is committed to protect the privacy of
citizens of India which can be seen by its end-to-end encryption feature.

VIOLATION OF PRINCIPLES OF ARTICLE 14
It is humbly submitted by the respondent that the privacy policy has not any monopolizing
tendency rather collecting user data for business enhancement purposes has Pro- Competitive
benefits and economic traits of User Data ameliorate concerns that such data can be
manipulated for anticompetitive gains. Additionally, it is also submitted that the impugned
privacy policy is not arbitrary and hence not violative of Article 14 of Constitution of India
Ⅳ THERE IS NO ABSENCE OF A LEGAL FRAMEWORK TO REGULATE

WHATSAPP
It is humbly submitted by the respondent that the impugned privacy policy is in conformity
with the existing rules and regulations of India and there is no violation of user privacy.
Additionally, it is also submitted that The Personal Data Protection Bill, 2019 has still not been
enacted so the respondent is under no obligation to conform with the same.
xi | P a g e
COMPETITION
[ ARGUMENT ADVANCED]
ARGUMENT ADVANCED
Ⅰ. THE WRIT FILED IS NOT MAINTAINABLE BEFORE THE HIGH COURT

1) It is Humbly submitted by the respondents that it is settled law that writ jurisdiction under
Article 226 of the Constitution of India is not properly invoked to address a dispute over a
contractual relationship between private parties. Disputes arising out of private contracts-
including the enforceability of contracts are not properly the subject of writ jurisdiction [
A].
A. DISPUTES ARISING OUT OF PRIVATE CONTRACTS ARE NOT AMENABLE

TO WRIT JURISDICTION
2) It is humbly submitted by the respondents that this dispute is a private contractual matter.1
The users of WhatsApp and ‘WhatsApp’ are parties to a private contract, and the users of
WhatsApp having voluntarily opted to avail the services of the said Application are bound
by the service offered by ‘WhatsApp’.
3) More recently in K.K Saksena v International Commission on Irrigation and Drainage2,
another two judge Bench of Supreme Court held that a writ would not lie to enforce purely
private law rights. Consequently, even if a body is performing a public duty and is amenable
to the exercise of writ jurisdiction, all its decisions would not be subject to judicial review.
The contracts entered into between private parties are not subject to scrutiny under writ
jurisdiction3.
4) The Supreme Court in the case of Bareilly Development Authority Vs. Ajay Pal Singh
4
wherein it was held that There is a line of decisions where the contract entered into between
the State and the persons aggrieved is non statutory and purely contractual and the rights
are governed only by the terms of the contract, no writ or order can be issued under Article
226 of the Constitution of India. In the case of Divisional Forest Officer Vs. Vishwanath
Tea Company Ltd5 it was held that A right to relief flowing from a contract has to be
claimed in a civil court where a suit for specific performance of contract or for damages
could be filed.”
1
Karmanya Singh Sareen v. Union of India, 233 (2016) DLT 436.
2
K K Saksena v International Commission on Irrigation and Drainage (2015) 4 SCC 670
3
Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and Others 2019 (6) SCALE 70
4
Bareilly Development Authority Vs. Ajay Pal Singh (1989) 2 SCC 116
5
Divisional Forest Officer Vs. Vishwanath Tea Company Ltd (1981) 3 SCC 238
1|Page
COMPETITION
5) A private company would normally not be amenable to the writ jurisdiction under Article
226 of the Constitution6. Contractual duties are enforceable as matters of private law by
ordinary contractual remedies such as damages, injunction, specific performance and
declaration7. A writ of mandamus or the remedy under Article 226 is a public law remedy
and is not generally available as a remedy against private wrongs.8
6) Additionally, respondent also humbly submits that the petitioner had alternate remedy
which he had not sought(i).
(i) AVAILABILITY OF SPECIFIC CONTRACTUAL REMEDIES

7) It is humbly submitted by the respondent that the petitioner has not exhausted his alternate
remedies in case of breach of contract9.
8) Unless a specific constitutional remedy is sought, the high court cannot assume jurisdiction
under article 226.10 Wherever any the legislature provides for statutory adjudication of
rights and dispensation of claims through specific enactments, the courts cannot invoke
writ jurisdiction as that shall be tantamount to defeating the legislative intent and shall
impede the parliament’s legislative competence11 The High Court does not have a parallel
jurisdiction.12 The Supreme Court carefully warned all high courts to abstain from
embarking on judicial adventurism by passing whimsical orders granting wrongful and
unwarranted relief to the parties13 Additionally, ABL International Ltd v. Export Credit
Guarantee Corporation of India Ltd 14summarised as under:
…. this plenary right of the High Court to issue a prerogative writ will not normally be
exercised by the Court to the exclusion of other available remedies unless such action
of the State or its instrumentality is arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14.15
6
K.K. Saxena v/s. International Commission on Irrigation & Drainage (2015) 4 SCC 670
7
Federal Bank Ltd. v/s. Sagar Thomas & Ors (2003) 10 SCC 733
8
Binny Limited & Anr. v/s. V. Sadasivan & Ors (2005) 6 SCC 657
9
Supra note 5.
10
Authorized Officer, State Bank of Travancore v. Mathew K.C (2018) 2 SCC 41.
11
Commissioner of Income Tax v. Chhabil Das Agarwal (2014) 1 SCC 603.
12
Chandra Kumar v. Union of India (1997) 3 SCC 261.
13
Dwarikesh Sugar Industries Ltd v. Prem Heavy Engineering Works P. Ltd (1997) 6 SCC 450.
14
ABL International Ltd v. Export Credit Guarantee Corporation of India Ltd (2005) 10 SCC 495.
15
Ibid at Para. 17
2|Page
COMPETITION
ABSENCE OF LAW DEFINING THE LIMIT OF PRIVACY
9) It is humbly submitted by the respondent that India does not have comprehensive, explicit
and dedicative data protection legislation so as to govern the respondent updated privacy
policy[A]. Additionally, it is also submitted that the respondent is committed to protect the
privacy of citizens of India which can be seen by its end-to-end encryption feature[B].
A. INDIA DOES NOT HAVE COMPREHENSIVE, EXPLICIT AND DEDICATIVE

DATA PROTECTION LEGISLATION SO AS TO GOVERN THE RESPONDENT
UPDATED PRIVACY POLICY
10) In India there are no sector specific legislations regarding privacy unlike U.S. A16. In
contrast to Europe’s comprehensive Data Protection Directive,17 the United States relies on
a combination of legislation at the federal and state levels, administrative regulations, as
well as industry specific self-regulation guidelines18 The United States follows a sectoral
approach to data privacy protection19 There is no all-encompassing federal legislation that
ensures the privacy and protection of personal data. Instead, legislation at the federal level
primarily protects data within sector-specific contexts20.
11) Right to object to marketing has not been explicitly provided under the Information
Technology Act, 200021 At present there is no dedicated authority responsible for data
protection in India22. Even the landmark Puttaswamy23 judgement did not place any
restrictions on using user’s data for business enhancement purposes in the facet of
informational privacy when it is in conformity with the existing regulations.
16
I. N. Walden and R. N. Savage, “Data Protection and Privacy Laws: Should Organizations Be Protected? “The
International and Comparative Law Quarterly, Vol. 37, No. 2 (1988): 337-347.
17
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of
Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J.
(L 281) 31 (repealed 2016).
18
Peter Swire & DeBrae Kennedy-Mayo, How Both the EU and the U.S. Are “Stricter” than Each Other for the
Privacy of Government Requests for Information, 55 Emory L.J. 617, 642 (2017).
19
William McGeveran, Friending the Privacy Regulators, 58 Ariz. L. Rev. 959, 961 (2016).
20
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193–95 (1890).
21
Dr. Amit Ludri, Law on protection of personal & official information in India, The Bright Law house, New
Delhi, 1st Edition, (2010).
22
Graham Greenleaf and Sinta Dewi Rosadi, “Indonesia’s data protection Regulation 2012: A brief code with
data breach notification,” Privacy Laws & Business International Report, Issue 122, (2013): 24-27.
23
K.S. Puttaswamy&Anr. v. Union of India (2017) 10 SCC 1
3|Page
COMPETITION
B. THE RESPONDENT IS COMMITTED TO PROTECT THE PRIVACY OF

CITIZENS OF INDIA WHICH CAN BE SEEN BY ITS END-TO-END
ENCRYPTION FEATURE
12) It is humbly submitted by the respondent that it protects the privacy of citizens by its most
appreciated end to end encryption feature. End-to-end encryption ensures only a user and
the person they are communicating with can read or listen to what is sent, and nobody in
between, not even Respondent24. WhatsApp defines end-to-end encryption as
communications that remain encrypted from a device controlled by the sender to one
controlled by the recipient,25 where no third parties, not even WhatsApp or our parent
company Facebook, can access the content in between26. A third party in this context means
any organization that is not the sender or recipient user directly participating in the
conversation.”27
13) Additionally, the commitment of respondent’s protecting privacy of citizens of India can
also be seen from its Writ Petition challenging the requirement in the (“Intermediary
Rules”)28 that intermediaries like Respondent enable “the identification of the first
originator of the information” 29in India on their end-to-end encrypted messaging services
(commonly referred to as “traceability”), upon government or court order. Impugned Rule
4(2) infringes upon the fundamental right to privacy without satisfying the three-part test
set forth by the Hon’ble Supreme Court30: (i) legality; (ii) necessity; and (iii)
proportionality. Impugned Rule 4(2)’s requirement to enable the identification of the first
originator of information in India is ultra vires its parent statutory provision31
24
Endeley, R.E. (2018) End-to-End Encryption in Messaging Services and National Security—Case of WhatsApp
Messenger. Journal of Information Security, 9, 95-99.
25
K. Berlin, S.S. Dhenakaran "Adoption of Crypto Encryption Techniques in Different Scenario " in International
Journal of Advance Research in Computer Science and Management Studies, Volume 5, Issue 8, August 2017.
26
Sarker, G.R. (2015) Impact of WhatsApp Messenger on the University Level Students: A Sociological Study.
International Journal of Natural and Social Sciences, 2, 118-125. See also WhatsApp Technical White Paper
27
Jisha, K. and Jebakumar (2014) A Trend Setter in Mobile Communication among Chennai Youth. IOSR Journal
of Humanities and Social Science (IOSR-JHSS), 19, 01-06.
28
Rule 4(2) Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
29
“Introducing a traceability requirement for end-to-end encrypted services will lead to breaking of such
encryption and thus compromising the privacy of individuals making use of such services for their private
communication.”
30
Supra note 23.
31
Section 79, Information Technology Act, 2000.
4|Page
COMPETITION
VIOLATION OF PRINCIPLES OF ARTICLE 14
14) It is humbly submitted by the respondent that the privacy policy has not any monopolizing
tendency rather collecting user data for business enhancement purposes has Pro-
Competitive benefits and economic traits of User Data ameliorate concerns that such data
can be manipulated for anticompetitive gains [A]. Additionally, it is also submitted that the
impugned privacy policy is not arbitrary and hence not violative of Article 14 of
Constitution of India[B].
A. ECONOMIC TRAITS OF USER DATA AMELIORATE CONCERNS THAT

SUCH DATA CAN BE MANIPULATED FOR ANTICOMPETITIVE GAINS
15) It is submitted by the respondent that the user data subsidizes free products for customers(i),
improves quality of product(ii), and its economic characteristics protect against competitive
harms(iii).
(i) MONETIZATION OF DATA SUBSIDIZES FREE PRODUCTS FOR

CONSUMERS
16) The monetization of the data in the form of targeted advertising sales for antitrust purposes
is not suspect or harmful, but rather “economically-rational, profit-maximizing behaviour,”
that results in obvious consumer benefit32. Were online platforms prevented or restricted
from collecting and monetizing consumer data, competition for users would be inhibited33,
and harm to consumers would result, in the form of higher prices for services34. Indeed,
switching costs are low regarding data and search35. In a competition law regime where
lower prices for consumers are deemed highly desirable, this is undoubtedly a benefit to
consumers36. Perhaps the most obvious and pervasive benefit to be realized in the Big Data
era has been the ability of firms to
32
Averitt, Neil and Robert H. Lande 1997. Consumer Sovereignty: A Unified Theory of Antitrust and Consumer
Protection Law, Antitrust Law Journal 65: 713-756.
33
Bessen, James and Michael J. Meurer 2014. The Direct Costs from NPE Disputes, Cornell Law Review 99:
387-424.
34
Cooper, James C. 2013. Privacy and Antitrust: Underpants Gnomes, the First Amendment, and Subjectivity,
George Mason Law Review 20(4): 1129-1146.
35
Edlin, Aaron S. and Robert G. Harris 2013. The Role of Switching Costs in Antitrust Analysis: A Comparison
of Microsoft and Google, Yale Journal of Law and Technology 15: 169-213.
36
Evans, David S. 2009. The online advertising industry: Economics, evolution, and privacy, The Journal of
Economic Perspectives 23 (3), 37–60.
5|Page
COMPETITION
offer heavily subsidized, often free, services to consumers as consumers give those
firms permission to monetize consumer data on the other side of their business.37
(ii) IMPROVED QUALITY AND ENHANCED INNOVATION

17) As an input, online firms use data to improve and refine products and services in a number
of ways, and to develop brand new innovative product offerings 38. For example, search
engines, both general and niche, can use data to deliver more relevant, high quality search
results39. Social networking platforms use data collected from users to suggest friends,
celebrity or business pages, or articles that customers might be interested in40. Online media
outlets use browsing history and personal information to recommend other articles that a
reader may be interested in41.
(iii) ECONOMIC CHARACTERISTICS OF BIG DATA PROTECT AGAINST

COMPETITIVE HARM
18) Additionally, the unique economic characteristics of data mean that its accumulation does
not, by itself, create a barrier to entry(a), and does not automatically endow a firm with
either the incentive or the ability to foreclose rivals (b), expand or sustain its own
monopoly(c), or harm competition in other ways(d).
(a) Low Barriers to Entry

19) While the existence or lack thereof of barriers to entry can, and will, differ from market to
market42, and a blanket determination cannot be made in the abstract43, the history of the
digital economy offers many examples, like Slack, Facebook, Snapchat, and Tinder, where
a simple insight into customer needs enabled entry and rapid success despite established
network effects44.
37
Ibid at p.48
38
Fudenberg, Drew and Jean Tirole 1986. A "Signal-Jamming" Theory of Predation, The RAND Journal of
Economics, 17(3): 366-376.
39
Goldfarb, Avi 2014. What is different about online advertising? Review of Industrial Organization 44(2): 115-
129.
40
Goldfarb, Avi and Catherine Tucker 2010. Privacy Regulation and Online Advertising, Management Science
57(1): 57-71.
41
Goldfarb, Avi and Catherine Tucker 2011. “Online Advertising.” In The Internet and Mobile Technology
Advances in Computing, 81, 290–337.
42
Graef, Inge 2015. Market Definition and Market Power in Data: The Case of Online Platforms, World
Competition, 38(4): 473–505.
43
Jones Harbour, Pamela and Tara Isa Koslov 2010. Section 2 in a Web 2.0 World: An Expanded Vision of
Relevant Product Markets, Antitrust Law Journal 76: 769-797.
44
Lambrecht, Anja and Tucker, Catherine 2015. Can Big Data Protect a Firm from Competition?
6|Page
COMPETITION
20) The data requirements of new competitors are far more modest and qualitatively different
than that of more established firms45. Little, if any, user data is required as a starting point
for most online services46. Instead, firms may enter with innovative new products that
skilfully address customer needs, and quickly collect data from users47, which can then be
used towards further product improvement and success. As such, new entrants are unlikely
to be at a significant competitive disadvantage relative to incumbents in terms of data
collection or analysis48.
(b) Data is Ubiquitous, Inexpensive, and Easy to Collect

21) Data is ubiquitous, inexpensive, and easy to collect49. Users are constantly creating data –
increased internet and smartphone usage means customers are continuously leaving behind
traces of their needs and preferences50. Data can be easily and quickly collected from
consumers upon launch, and both data and the tools needed to store and analyse it is readily
available from numerous third-party sources51.
(c) Data is Non-Exclusive and Non-Rivalrous

22) Data is non-exclusive and non-rivalrous. No one firm can, or does, control all of the world’s
data52. Collection of a piece of data by one firm does not occur at the expense of another
firm53. “Multi-homing” is the norm among internet users – users can, and do, spread their
data around the internet, using multiple different providers for multiple different services,
or sometimes the same service54. While multi-homing, a user shares data with multiple
providers55. There are no exclusivity clauses in terms of service with
45
Lichtman, Doug and Mark A. Lemley 2007. Rethinking Patent Law’s Presumption of Patent Validity, Stanford
Law Review 60: 45-72.
46
Newman, Nathan 2014. Search, Antitrust and the Economics of the Control of User Data, Yale Journal on
Regulation 31: 401-452.
47
Ohlhausen, Maureen K. and Alexander P. Okuliar 2015. Competition, Consumer Protection, And the Right
Approach To Privacy, Antitrust Law Journal 80: 121-156.
48
Rochet, Jean Charles and Jean Tirole 2002. Cooperation among Competitors: Some Economics of Payment
Card Associations, RAND Journal of Economics, 33: 1-22.
49
Salinger, Michael A. and Robert J. Levinson 2015. Economics and the FTC’s Google Investigation, Review of
Industrial Organization, 46: 25-57.
50
Tucker, Catherine 2013. The Implications of Improved Attribution and Measurability for Antitrust and Privacy
in Online Advertising Markets, George Mason Law Review 20: 1015-1054.
51
Varian, Hal R. 2014. Big Data: New Tricks for Econometrics, Journal of Economic Perspectives 28(2): 3-28.
52
Draganska, M., W. R. Hartmann, and G. Stanglein (2014). Internet versus television advertising: A brand-
building comparison. Journal of Marketing Research 51 (5), 578{590.
53
Varian, H. R. (2014). Big data: new tricks for econometrics. The Journal of Economic Perspectives, 3-27.
54
Wernerfelt, B. (1984). A resource-based review of the firm. Strategic management journal 5 (2), 171-180.
55
Rodgers, Shelly, and Esther Thorson (2000), “The Interactive Advertising Model: How Users Perceive and
Process Online Ads,” Journal of Interactive Advertising, 1 (1), 41–60.
7|Page
COMPETITION
users, and there are no structures (pricing or otherwise) that lock users into sharing their
data with only one provider56.
(d) Data Alone is Not Enough

23) Data does not typically provide value on a standalone basis. Mere possession of data alone
therefore, even in large volume, does not secure competitive success – that can only be
achieved through engineering talent, quality of service, speed of innovation, and attention
to consumer needs57. As such, the firm with the most data does not necessarily win. A
simple user interface and a precise attention to consumer needs resulted in massive gains
for the new entrant as in the case of respondent’s privacy policy. Similarly, despite facing
competition from long established incumbents with access to huge volumes of data,
amassed over years of customer service, WhatsApp was able to take on more established
messaging and social networks because of its low cost and easy-to-use interface.
B. THE IMPUGNED PRIVACY POLICY IS NOT ARBITRARY

24) As discussed above that there exists private contractual relationship between users of
WhatsApp and ‘WhatsApp’58 so the users have the option to terminate the contract and
have the freedom to discontinue their use of WhatsApp’s service at any time, there is no
compulsion to use the services of WhatsApp. When a user deletes his/her WhatsApp
account undelivered messages are deleted from WhatsApp’s servers as well as any of the
user’s other information. WhatsApp no longer needs to operate and provide the WhatsApp
services which is in consonance with legislative requirements59.
56
Rodgers, Shelly, and Esther Thorson (2000), “The Interactive Advertising Model: How Users Perceive and
Process Online Ads,” Journal of Interactive Advertising, 1 (1), 41–60.
57
Nill, Alexander, and Robert J. Aalberts (2014), “Legal and Ethical Challenges of Online Behavioural Targeting
in Advertising,” Journal of Current Issues and Research in Advertising, 35 (2), 126–46.
58
Argument Advanced, Para 2.
59
Section 9, The Personal Data Protection Bill, 2019.
8|Page
COMPETITION
Ⅳ THERE IS NO ABSENCE OF A LEGAL FRAMEWORK TO REGULATE
WHATSAPP
25) It is humbly submitted by the respondent that the impugned privacy policy is in conformity
with the existing rules and regulations of India[A] and there is no violation of user privacy.
A. THE IMPUGNED PRIVACY POLICY IS IN CONFORMITY WITH THE

EXISTING RULES AND REGULATIONS OF INDIA
26) The existing legal framework – including the Information Technology Act, 2000 and
Contract Act – already provide a sufficient legal framework governing data protection and
privacy, as well as validity of consent. Specifically, the IT Act, and the rules promulgated
thereunder, provide a framework to govern transactions carried out electronically. The IT
Act and associated rules govern data protection and privacy in India.
27) A Body Corporate holding sensitive personal data or information cannot retain the
information for longer than necessary to fulfil the purposes for which the information may
lawfully be used or otherwise required by a law in force60 which we already discussed
above.61
28) The information can be used only for the purposes for which it has been collected.62
However, the Rules do not address the situation where the original purpose and use changes
or if the information will be used for another purpose after the information has already been
collected.63
29) Prior to collection, a Body Corporate must provide the individual with the option of not
disclosing information, including sensitive personal data or information. The individual
also has a right to withdraw consent.64 It is not clear, however, if the Body Corporate has
an obligation to delete information if consent is withdrawn.
30) It is clear that the impugned privacy policy is in conformity with all the existing rules and
regulations of India.
60
Rule 5(4), Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data
or Information) Rules 2011.
61
Argument Advanced, Para 24.
62
or Information) Rules 2011.
63
or Information) Rules 20
64
or Information) Rules 2011. See also Argument Advanced, Para 24.
9|Page
COMPETITION
31) As propounded by the United States Supreme Court65, the third-party doctrine in practical
terms means that a person has no right of privacy over data that is voluntarily given up and
is held by a company. The individual loses sole-propriety over such data.
32) Additionally, it is also submitted that The Personal Data Protection Bill, 2019 has still not
been enacted so the respondent is under no obligation to conform with the same.
65
Smith v. Maryland, 442 U.S. 735 (1979)
10 | P a g e
COMPETITION
PRAYER
In the light of the facts and circumstances stated, and submissions made hereinabove, it is most
respectfully prayed that this Hon'ble Court may be pleased to: -
Take the present affidavit on record and dismiss the petition in view of the above factual
clarifications.
And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and
good conscience.
And for this act of kindness, the counsel for the respondent shall duty bound forever pray.
Sd/-
(Counsel for respondent)
xii | P a g e

Memorial Respondent

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Memorial Respondent

Uploaded by

Copyright:

Available Formats

TEAM CODE: T33

3RD DHARMASHASTRA NATIONAL LAW UNIVERSITY INTRA MOOT COURT

17TH – 18TH JULY 2021

IN THE MATTER CONCERNING

RAMESH KUMAR (PETITIONER)

WHATSAPP AND OTHERS (RESPONDENT)

ISSUE Ⅲ: - Whether the application of privacy policy constitutes a violation of principles of

Ⅱ THE ARGUMENT OF 'BREACH OF PRIVACY' IS NOT JUSTIFIABLE IN THE

Ⅲ THE APPLICATION OF PRIVACY POLICY DOES NOT CONSTITUTES A

Ⅳ THERE IS NO ABSENCE OF A LEGAL FRAMEWORK TO REGULATE

Ⅰ. THE WRIT FILED IS NOT MAINTAINABLE BEFORE THE HIGH COURT

A. DISPUTES ARISING OUT OF PRIVATE CONTRACTS ARE NOT AMENABLE

(i) AVAILABILITY OF SPECIFIC CONTRACTUAL REMEDIES

A. INDIA DOES NOT HAVE COMPREHENSIVE, EXPLICIT AND DEDICATIVE

B. THE RESPONDENT IS COMMITTED TO PROTECT THE PRIVACY OF

A. ECONOMIC TRAITS OF USER DATA AMELIORATE CONCERNS THAT

(i) MONETIZATION OF DATA SUBSIDIZES FREE PRODUCTS FOR

(ii) IMPROVED QUALITY AND ENHANCED INNOVATION

(iii) ECONOMIC CHARACTERISTICS OF BIG DATA PROTECT AGAINST

(a) Low Barriers to Entry

(b) Data is Ubiquitous, Inexpensive, and Easy to Collect

(c) Data is Non-Exclusive and Non-Rivalrous

(d) Data Alone is Not Enough

B. THE IMPUGNED PRIVACY POLICY IS NOT ARBITRARY

A. THE IMPUGNED PRIVACY POLICY IS IN CONFORMITY WITH THE

(Counsel for respondent)

You might also like