Allahabad HC Stays Consumer Complaint Proceedings Against WhatsApp On Its Plea Against SCDRC's Order

A bench of Justice Pankaj Bhatia issued notice to respondent (Amitabh Thakur) and granted him four weeks to file a counter-affidavit in the matter.

The single judge also directed that, until further orders are issued, further proceedings pursuant to the impugned order shall remain stayed. 

For context, in the impugned order, the UPSRDC effectively held that a consumer complaint is maintainable against WhatsApp, and set aside the order passed by the District Consumer Commission and directed it to register the appellant's complaint as a consumer complaint and ensure that its conclusion regarding compensation is made within the 90-day period specified under the Consumer Protection Act.

The impugned order was passed on two appeals filed by a former IPS officer and presently Azad Adhikar Sena National President, Amitabh Thakur, challenging the orders of the District Commission, Lucknow, rejecting his complaint.

Essentially, it was Thakur's case that his WhatsApp services were unnecessarily interrupted for 06 hours, and thus the terms of service (of WhatsApp) were violated.

In his complaint before the District Forum seeking compensation, Thakur claimed that his work was affected during this period. However, his complaint was rejected on the grounds that WhatsApp is an international company to which Thakur had not given any consideration; hence, the consumer complaint is not admissible.

However, this order was set aside by the impugned order of UPSCDRC.

Challenging UPSCDRC's order, WhatsApp moved a plea under Article 227 of the Constitution of India, arguing that a consumer complaint won't be maintainable against it as the messaging app is free to use and since its 'users' don't pay any 'consideration' to the company, a person doesn't qualify as a “consumer” of the “service” under the Consumer Protection Act, 2019.

In other words, WhatsApp has claimed that since it provides free services to all, hence, its users are not its 'consumers' within the meaning of the 2019 Act and hence, no complaint under the act would be maintainable against it.

The plea adds that the 2019 Act only extends to goods and services that are 'paid for' and that the Act clearly defines “service" to exclude services offered free of charge, which is also the case with WhatsApp, which is free to use.

“It is undisputed that Respondent has not paid any consideration to avail the WhatsApp Service, precluding his claim under the CPA as a matter of law. Indeed, the law is well-settled that free services do not fall within the purview of the CPA, and a person is not a "consumer" under the CPA if he has not paid any consideration for the service rendered,” the plea argues.

In its plea before the, WhatsApp has also argued that when the District Commission does not have jurisdiction to hear the Complaints, the Impugned Order directing it to hear the Complaints would lead to an 'improper exercise of jurisdiction'.

The plea also adds that the impugned Order violates principles of natural justice as it suffers from 'non-application of mind', and the same is not supported by adequate reasons, and is cryptic.

“Indeed, the Impugned Order disregards the plain language of the CPA and overwhelming binding precedent that require it to conclude that the Complaints are not maintainable qua WhatsApp”, the plea argues.

The petitioner has also challenged the observation of the UPSCDRC that WhatsApp users are "consumers" simply because WhatsApp's main objective is to attract customers.

“There is no basis in the law to support this conclusion. Indeed, if one were to accept the Ld. State Commission's conclusion, the definition of "consumer" would be rendered meaningless; every person or company with the goal of attracting customers would be subject to the CPA, even if they offered only free services,” the plea adds.