Between Platforms and Public Law: A Case for Interoperability

Introduction

Recently, the Supreme Court dismissed a writ petition seeking the restoration of a doctor’s blocked WhatsApp account. While doing so, the Court notably recommended that the petitioner use Arattai, a messaging platform developed by the Indian company Zoho, instead of WhatsApp. The Court dismissed the petition on the grounds that a Writ Petition under Article 32 of the Constitution could not be maintained against WhatsApp since it is an intermediary platform, and that there is no fundamental right to access WhatsApp. On this basis, the petitioner was allowed to approach another forum for appropriate reliefs.

These remarks of the Supreme Court raise a host of concerns about the interaction of the law with platforms such as WhatsApp. In this article, I engage primarily with two such concerns. First, I explore the applicability of the public function test to entertain a petition for the violation of fundamental rights by a private platform. Second, I argue that irrespective of whether courts can entertain such a petition, its remarks on the alternatives to WhatsApp fail to accurately capture the nature of platforms such as WhatsApp. On the basis of these observations, I explore interoperability through a central regulatory authority as a potential solution to the kinds of issues raised in this petition.

On the Public Function Test

Under Article 32 of the Constitution, a petitioner may approach the Supreme Court for the enforcement of their fundamental rights guaranteed under Part III of the Constitution. Article 32 is designed specifically for the enforcement of Fundamental Rights. Therefore, in order to claim reliefs under the provision, it must first be shown that the offending entity qualifies as ‘State’ under Article 12.

There is a large body of judgments which explore the scope of the definition of State under Article 12.  In these judgments, the Court has debated whether an entity should be considered State on the basis of the degree of control which the government exercises over it or on the basis of the functions that it performs. Some decisions recognise that insofar as entities perform a public function, they ought to be treated as State for the purposes of Article 12. Other judgments, however, emphasise that government control is the determinative test under Article 12. This test of government control has come to dominate the jurisprudence on Article 12.

Although relief under Article 32 may be sought only against entities controlled by the government, this does not mean that non-State bodies have no obligation to conform to the content of fundamental rights under Part III. Courts have often recognised that since the phraseology of Article 226 is much broader than that of Article 32, High Courts have the power to enforce rights, whether fundamental or non-fundamental, against bodies that do not necessarily constitute State under Article 12. However, in order to be subject to the writ jurisdiction of the High Court under Article 226, it must be shown that a body performs a public duty or function.

Does WhatsApp Perform a Public Function?

Bhatia argues that a determination of whether an entity performs a public function requires a determination of whether it exercises the power to control access to a basic human good. In a judgment that was subsequently appealed and stayed, the Karnataka High Court had held that a writ petition is maintainable over a private entity if the entity owes a duty to the public. It concluded that since statutes impose public facing obligations on OLA, they are amenable to the writ jurisdiction of the High Court under Article 226. In the present case, it ought to be asked whether WhatsApp performs a public function; and whether the deprivation of access to WhatsApp constitutes a violation of a fundamental or non-fundamental right.

In 2019, Meta argued before the Delhi High Court that the use of its services constitute a contract with the user, and that Meta has no exclusive rights or monopoly status under the law. On this basis, Meta argued that it does not perform a public function. Along similar lines, the Supreme Court noted in Karmanya Singh Sareen v. Union of India (2016) that since the terms of service of WhatsApp do not derive from statute, WhatsApp is not amenable to the jurisdiction of the High Court under Article 226. Although in a different context, the Competition Commission of India (“CCI”) observed in Vinod Kumar v WhatsApp Inc.(2017)  that there are other players in the market for instant messaging services, and that there is no cost involved in switching from one app to another. Although this finding was made in the context of competition law, it appears to support the conclusion that WhatsApp does not control access to basic goods (if such services were basic goods at all), since other platforms provide viable alternatives at low costs.

However, the access to some channels of communication such as WhatsApp might in fact constitute a basic good. India had 853.8 million users as of 2024. WhatsApp is also preferred by users in their interaction with businesses. It is also significant that WhatsApp rapidly gained popularity since its launch in 2009. Its early entry into the instant messaging market, coupled with its established presence ever since, contribute to its dominance.

Basic goods are not merely goods that are necessary for survival, but also intangible goods that include access to social memberships and communal participation. Given the dominance of WhatsApp in the Indian instant messaging market, it may be argued that meaningful social participation requires one to have access to dominant channels of communication. If this is so, then WhatsApp likely controls access to a basic good, and should be subject to writ jurisdiction under Article 226.

It is also significant that instant messaging platforms are generally not interoperable. The CCI recognised some of these challenges in its 2021 order on the updated terms of use and privacy policy of WhatsApp. It noted, first, that WhatsApp is the most widely used instant messaging app in India. Second, it observed that the network effects of WhatsApp contribute to its value. In other words, as more users create accounts on WhatsApp, the app becomes more valuable to users who are already on the app, since it enables communication with a wider network of people. Network effects also generate incentives to remain on one app, since other apps might not have as many users from one’s network. In this sense, although Vinod Kumar was correct in its observation that there are no monetary costs involved in switching between applications, it would appear that switching is perhaps not as feasible as the CCI made it out to be in that case.

In this sense, network effects generate a “winner takes all” quality that makes one platform especially attractive, even though other options in the market might offer services of a similar quality. Therefore, if instant messaging is a basic good, there is a strong argument to be made that WhatsApp does perform a public function in that it controls access to dominant channels of instant messaging. If this is so, then WhatsApp does bear obligations under public law, for the violation of which a petition may be filed under Article 226 of the Constitution.

Why Data Portability Would not go Far Enough

Irrespective of whether WhatsApp performs a public function and whether the deprivation of access to WhatsApp is a violation of a right, the challenges posed by network effects and switching costs raise important questions. Instant messaging services are unquestionably important today. Of these, WhatsApp is particularly important, given the network effects generated by its popularity with users in India.

It might appear that one potential solution to the problem that WhatsApp’s dominant position poses is data portability. It has been argued by some that a significant shortcoming of the new data protection law in India is that it does not provide for a right to data portability. In the context of the present case, however, data portability would not do enough to offset the challenges raised by the network effects of WhatsApp.

Data portability enables users to require an entity holding their information to transfer it to other entities. In the present context, a WhatsApp user could require WhatsApp to transfer her data on WhatsApp to, say Arattai. In fact, Arattai provides such a feature to its users. However, a user must transfer information from each chat individually.

Notice, however, that this feature does little to respond to the problem raised in the earlier section. The key challenge with switching from WhatsApp lies not only in the fact that users already have chats on WhatsApp which they will need to transfer. Instead, the popularity of WhatsApp means that even if a person were to successfully transfer all their data from WhatsApp to Arattai, there is still a switching cost in that the user no longer enjoys the network effects that they enjoyed on WhatsApp.

Moreover, having switched to an alternate app, say Arattai, an Arattai user will find that they now face the same problem that they faced on WhatsApp. Recall that WhatsApp users cannot communicate with non-WhatsApp users unless both parties are users of a third common app. Arattai users would now face the same challenge, in that they cannot communicate with non-Arattai users unless they are both users of a different common app.

It is also significant that the nature of this problem is not merely technological, but also legal. The challenge of dominance is produced by the absence of a law that requires platforms to design their communication networks in a manner that prevents such dominance. To promote greater choice in the instant messaging market, regulatory architecture must disincentivise the creation of communication silos.

Towards Interoperability?

Commenting on the sudden surge in the interest in Arattai as an alternative to WhatsApp, some argue that India ought to respond with interoperability, rather than with Indian apps that pose the same challenges as WhatsApp. Interoperability would mean that a WhatsApp user is able to communicate not just with other WhatsApp users, but instead with users on any application that is enabled through common interoperability protocols. In compliance with the Digital Markets Act (“DMA”) in Europe, Meta is already in the process of enabling interoperability in its instant messaging services in the EU.

Interoperability is not alien to the Indian digital ecosystem. Matthan discusses that the Unified Payments Interface (“UPI”) is “radically interoperable” in that any UPI app can be used to pay from an account with any participating bank. Similarly, payment platforms are interoperable in that a common QR Code may now be used to pay through any UPI app. UPI Payments are made facilitated by the National Payments Corporation of India (“NPCI”), an organisation set up at the initiative of the Reserve Bank of India (“RBI”) and the Indian Banks’ Association. Therefore, although decentralised, UPI payments are regulated by these institutions. Interoperability was mandated by the RBI across UPI apps in 2017. The NPCI owns and operates the UPI and regulates its functioning.

There, however, appears to be a challenge with this model. As the example of the UPI demonstrates, interoperability generally requires oversight by a regulator. A regulator, such as the NPCI in the context of UPI, defines and updates protocols. Such centralisation through a regulator, however, poses two kinds of challenges in the form of a trade-off. First, if a single body regulates the entirety of UPI, or in this case, instant messaging, then there is little incentive for the regulator to innovate and develop advancements to its protocol. Second, if there were competing regulators, each operating non-interoperable systems, there is an inconvenience in that users on each system cannot interact with those on the other.

In this sense, although the NPCI-like model brings the effectiveness of centralised governance, it concentrates technical standard-setting functions in a single body. In contrast, the DMA in Europe allows certain platforms to determine technical details and general terms of interoperability, including levels of security and end-to-end encryption. The European Commission is given a general supervisory role to ensure the compliance of these platforms with the provisions of the Act.

However, in the context of instant messaging, it might be possible to allow technology companies to innovate while also maintaining interoperability on a large scale. The law may simply prescribe outcome-based standards, rather than specific technical requirements. This may be done by combining the NPCI-like approach with the approach that the DMA adopts.

The law, whether through the regulator or through statute, could prescribe certain minimum technical thresholds of security in order to participate in the instant messaging market. For instance, many have raised concerns about the shift to Arattai, given that Arattai currently does not offer end-to-end encryption for chats. While compliance with basic security standards could be made a threshold requirement for participation in the market, the development of technical details could be left to the players in the market. This development would be guided by outcome-based standards set by the law.

Outcome-based standards only require what the players in the market ought to achieve, and not how they ought to do so. For instance, drawing from the DMA, outcome-based could include security standards such as end-to-end encryption, non-discriminatory interoperability, transparency, and opt-in requirements. It could, however, leave the development of encryption protocols and the implementation of the outcome-based standards to the platforms. The regulator would perform an auditing function, in order to ensure compliance with the outcome-based standards. This approach would avoid the radical centralisation of standard-setting, while also ensuring that minimum thresholds of security, interoperability, and quality, are maintained.

It might seem that while this model addresses one concern, it raises others. One significant concern might appear to be the kind of power that it would afford to companies such as Meta to shape interoperability mandates. This, however, will likely not be a challenge under this model. Outcome-based standards establish the contours within which companies may develop technical details of the interoperability framework. Compliance with these standards is subject to regulatory scrutiny. Therefore, rather than forfeiting control over interoperability mandates, this model ensures that publicly defined outcomes define how interoperability mandates may be shaped.

Conclusion

Over the course of this article, I explore the recent discussion in the Supreme Court on instant messaging platforms. I argue that the remarks made by the Court fail to capture the implications of network effects on the ability of users to switch between instant messaging platforms. On this basis, I propose interoperability as a solution to the challenges posed by network effects and switching costs. I argue that the law ought to set broad outcome-based standards of security, quality, and interoperability, and that compliance with these standards ought to be ensured by a regulator. The technical details, however, ought to be left to players in the market. I identify that this approach best balances innovation with regulatory oversight.

[The author is a student at National Law University, Delhi]