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MPF, SENACON, CADE, AND ANPD RECOMMEND WHATSAPP EXTEND THE TERM OF ITS NEW PRIVACY POLICY

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When WhatsApp informed its users a few months ago that their data could be shared with Facebook, this fact generated alarm among many users who imagined that part of their WhatsApp dialogues would appear on their Facebook pages. However, WhatsApp denied that this was going to happen.

WhatsApp was purchased by Facebook in 2014 for the total sum of US $ 22 billion after negotiation began at US $ 16 billion.  At the time, Facebook’s market value reached US $ 173 billion.

Because this created such discomfort among users and because of the popularity and importance of WhatsApp in Brazil, in both the personal and corporate spheres, the Federal Prosecution Office (MPF), the National Consumer Secretariat (SENACON), the Administrative Council for Economic Defense (CADE) and the National Data Protection Authority (ANPD), issued a written Recommendation, dated May 7, 2021, sending the following “messages” to WhatsApp Inc. and Facebook Miami Inc., Facebook Global Holdings III, LLC, and Facebook Serviços Online do Brasil Ltda:

TO WHATSAPP INC.

1. Postpone the validity of its Privacy Policy until the recommendations suggested after the analysis of regulatory bodies are adopted;

2. Refrain from restricting users’ access to the functionalities of the application if they do not add to the new privacy policy, ensuring they maintain the current model of use and, in particular, account maintenance and link with the platform, as well as access to message and file content, as it would be potentially very harmful, including to consumer rights, to change these arrangements, before a review by the competent regulatory bodies;

3. Adopt measures concerning the practices of processing personal data and transparency, according to the LGPD, according to Report No. 9/2021/CGF/ANPD and Technical Note No. 02/2021/CGTP/ANPD;

TO FACEBOOK MIAMI INC., FACEBOOK GLOBAL HOLDINGS III, LLC, AND FACEBOOK SERVIÇOS ONLINE DO BRASIL LTDA

Refrain from performing any kind of processing or sharing data collected by WhatsApp Inc. based on changes to the application’s Privacy Policy expected to take effect on May 15, 2021, if there are no regulatory bodies established.

The deadline given to companies to consent to these recommendations was May 10, 2021, under threat of the Federal Public Prosecutor’s Office filing a public civil action and other public entities to taking action in their respective areas of operation. On the other hand, it is important to point out that WhatsApp had granted users until May 15, 2021, to meet the new terms of its privacy policy.

While we understand users’ fears, it should be made clear that the changes in WhatsApp data processing rules would only apply to WhatsApp business conversations. The app itself clarifies that individual conversations or groups that do not involve business accounts will not be affected. It is also worth noting that users can avoid contacts with business accounts on the platform.

In any case, it will be interesting to follow the positioning of these four (4) public entities in the face of this issue, including not only the protection of personal data but also from the perspective of free competition. Considering the importance and relevance of the companies involved, whatever the position of public entities, this case should provide a template to be followed from now on in similar circumstances.

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