Between a rock and two hard places: WhatsApp at the crossroad of competition, data protection and consumer law

On 11 May 2017, the Italian antitrust and consumer protection authority (Autorità Garante della Concorrenza e del Mercato, or AGCM) adopted two decisions in its proceedings against WhatsApp. Both proceedings, initiated under the consumer protection mandate of AGCM, relate to WhatsApp's terms of service and privacy policy (together referred to as “ToS” hereinafter). In particular, one qualified as “unfair” and “aggressive” WhatsApp's process of obtaining user consent for its updated ToS, while the other established the unfairness of specific clauses of WhatsApp's ToS. This comment will address the former decision, while making reference to other proceedings opened against the consumer communication service or its mother company in relation to its latest ToS update.