WHATS APP PRIVACY POLICY: ABUSE OF DOMINANCE & VIOLATES COMPETITION LAW

 

WHATS APP PRIVACY POLICY: ABUSE OF DOMINANCE & VIOLATEs COMPETITION LAW

                                           ANIL K KHAWARE

                                            ADVOCATE

When Marshal Mcluhan, a Canadian thinker in the year 1960 had propounded the theory of “Global Village”, its impact however, could not have been perceived as real as it is now.  We are in the era of communication revolution, and a mere touch of a finger tip enables the user to access and approach any one across the globe. However, technology in its flip side also has commerce and commercial interest and thus, comes imposing of will of a concerned player in the market so as to reap advantage of their creation or tool in money term, some time unjustifiably. In free market many players are involved in a given spectrum and therefore, there is inbuilt check and balance qua the players in the field. However, if any one creator of a tool has monopoly, the bargaining chips are promptly invoked in the system and norms are decided by such dominant player as no one may be around to confront their monopoly and the compulsion of people who are used to such tool and features of it, cannot think to jettison it and there, comes the dicta i.e imposition of the will by dominant player- take it or leave it , as they know that the users will have to veer around them, being option- less and having been used to the comfort and perceived advantages. The player in a given field, therefore, can invoke and impose any commercially oriented policy with impunity and to their (people’s) chagrin. The use of people’s data may appear to be innocuous in first blush, but, that comes with huge premium and the very fact, that, if any entity becomes repository of such huge data, its value in commercial terms is incalculable and play begins here.  The WhatsApp privacy policy appears to be just that. The penchant of WhatsApp to go as far as trying to invoke its monopoly being oblivious to the laws of the land of a concerned country or its effort to devise a way to extricate itself from the prevailing domestic law is untenable. To assert that the privacy policy and update 2021 is innocuous and not intended to monetise the data claim shall cut no ice, at least not in the broader canvas that pans out. We know that the Competition Commission of India (CCI) is a watchdog as regards Unfair Trade Practices (UTP) and issue of dominance and abuse of dominance. The Competition Act 2002 is in place and pursuant thereto the Competition Commission of India has acted in a manner as is required.  The CCI has held in 24^th March 2021, in its prima facie order that the privacy policy of WhatsApp is being imposed on people of India by the edifice – “take it or leave it” is unfair and needs investigation. No sooner, the prima facie order as passed by the CCI, by way of writ petition, the WhatsApp approached hon’ble Delhi High Court inter alia claiming that no such order could be passed against the entity.

Before adverting to the petition of WhatsApp against the prima facie order of CCI it is necessary to cull out that WhatsApp claimed that it provides software based application for sending and receiving variety of media texts, photos and videos, calls etc. by using the internet. It was acquired by the Face book in the year 2014. It is claimed that WhatsApp is used by more than a billion users throughout the world and over 400 million users in India. It is stated that prior to 25.08.2016, the Agreement between WhatsApp and its users was governed by the Terms of Service and Privacy Policy dated July, 2012. On 25.08.2016 and WhatsApp updated its Terms and Services of Privacy Policy (hereinafter referred to as the ‘2016 Update’). It is claimed that WhatsApp users, prior to the 2016 Update, were given a one-time opportunity to ‘opt-out’ of Facebook using their WhatsApp account information. The users who joined WhatsApp after the release of 2016 Update, however, were not offered this ‘opt-out’ option. The 2016 Update was challenged in a Public Interest Litigation, being W.P(C) 7663/2016 titled Karmanya Singh Sareen & Anr. vs. Union of India & Ors, before the Delhi High Court. On 23.09.2016. The said petition was disposed off in view of pendency of Justice (Retd) K.S. Puttaswamy Vs Union Of India (2017) 10 SCC , though certain directions were issued in the interest of WhatsApp , that is as under:

i)                  If the users opt for completely deleting “WhatsApp” account before 25.09.2016, the information/data/details of such users should be deleted completely from “WhatsApp” servers and the same shall not be shared with the “Facebook” or any one of its group companies.

ii)                 Such users who opt to remain in “WhatsApp”, the existing information/data/details of such users upto 25.09.2016 shall not be shared with “Facebook” or any one of its group companies.

iii)          The respondent shall consider the issues regarding the functioning of the Internet Messaging Applications like “WhatsApp” and take an appropriate decision at the earliest as to whether it is feasible to bring the same under the statutory regulatory framework."

The above judgment was challenged by whatsApp before the Supreme Court in SLP (C) No.804/2017, however, no interim order has been passed therein and the petition remains pending for adjudication.

It is in this backdrop and as substantive public interest being involved, by way of present write up, the privacy policy of WhatsApp and its repercussion is being analysed from the legal point of view. Before venturing further, the contents of order dated 24^th March 2021 of CCI forming prima facie opinion of violation of competition law by WhatsApp and directing the Director General to conduct investigation needs perusal.

The crux of PRIMA FACIE OPINION BY CCI

The CCI has, inter alia, given the following reasons for directing an investigation to be carried out by its Director General into the 2021 Update of WhatsApp:-

(i)              The Commission concluded that WhatsApp is dominant in the relevant market for OTT messaging apps through smart phones in India.

(ii)            In the light of that the Commission was not to separately and independently examine the issue of relevant market and dominance of WhatsApp therein, when there is no change in the market construct or structure since the passing of the said order on 18^th August, 2020 ( Ref: Harshita Chawala Vs WhatsApp Inc & Ors) Case no. 15/2020 and announcing of the new policy by WhatsApp on January 04, 2021 – which itself seems to emanate out of the entrenched dominant position of WhatsApp in the said relevant market.

(iii)             The Commission has also taken note of the recent developments wherein the competing apps, i.e. Signal and Telegram witnessed a surge in downloads after the policy announcement by WhatsApp. However, apparently this has not resulted in any significant loss of users for WhatsApp. The network effects working in favour of WhatsApp reinforces its position of strength and limit its substitutability with other functionally similar apps/platforms.

(iv)             After considering the overarching terms and conditions of the new policy, the Commission was of prima facie opinion that the ‘take-it-or-leave-it’ nature of privacy policy and terms of service of WhatsApp and the information sharing stipulations mentioned therein, merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp.

(v)              The Commission (CCI)  has also taken note of the submission of WhatsApp that 2021 Update does not expand WhatsApp’s ability to share data with Facebook and the said update intends to provide users with further transparency about how WhatsApp collects, uses and shares data. The veracity of such claims would also be examined during the investigation by the DG.

(vi)            WhatsApp is the most widely used app for instant messaging in India. A communication network/platform gets more valuable as more users join it, thereby benefiting from network effects.

(vii)       The OTT messaging platforms not being interoperable, communication between two users is enabled only when both are registered on the same network. Thus, the value of a messaging app/platform increases for users with an increasing number of their friends and acquaintances joining the network.

(viii)     In India, the network effects have indubitably set in for WhatsApp, which undergird its position of strength and limit its substitutability with other functionally similar apps/platforms. This, in turn, causes a strong lock-in effect for users, switching to another platform for whom gets difficult and meaningless until all or most of their social contacts also switch to the same other platform.

(ix)            The users wishing to switch would have to convince their contacts to switch and these contacts would have to persuade their other contacts to switch. Thus, while it may be technically feasible to switch, the pronounced network effects of WhatsApp significantly circumscribe the usefulness of the same.

(x)               The network effects have been reflected when despite increase in downloads of the competing apps like Signal and Telegram, user base of WhatsApp apparently did not suffer any significant loss. As pointed out in Harshita Chawla case (supra)., the second largest player in terms of market share in the relevant market of instant messaging and thus the next sizeable alternative available to users is Facebook Messenger, which too is a Facebook Group company. Thus, the conduct of WhatsApp/ Facebook under consideration merits detailed scrutiny.

(xi)          The users, as owners of their personalised data, are entitled to be informed about the extent, scope and precise purpose of sharing of such data by WhatsApp with other Facebook Companies. However, it appears from the Privacy Policy as well as Terms of Service (including the FAQs published by WhatsApp), that many of the information categories described therein are too broad, vague and unintelligible. For instance, information on how users “interact with others (including businesses)” is not clearly defined, what would constitute “service-related information”, “mobile device information”, “payments or business features”, etc. are also undefined.

(xii)       At numerous places in the policy while illustrating the data to be collected, the list is indicative and not exhaustive due to usage of words like ‘includes’, ‘such as’, ‘For example’, etc., which suggests that the scope of sharing may extend beyond the information categories that have been expressly mentioned in the policy. Such opacity, vagueness, open-endedness and incomplete disclosures hide the actual data cost that a user incurs for availing WhatsApp services.

(xiii)     It is also not clear from the policy whether the historical data of users would also be shared with Facebook Companies and whether data would be shared in respect of those WhatsApp users also who are not present on other apps of Facebook i.e., Facebook, Instagram, etc.

(xiv)     Users are not likely to expect their personal data to be shared with third parties ordinarily except for the limited purpose of providing or improving WhatsApp’s service. However, it appears from the wordings of the policy that the data sharing scheme is also intended to, inter alia, ‘customise’, ‘personalise’ and ‘market’ the offerings of other Facebook Companies. Under competitive market condition, users would have sovereign rights and control over decisions related to sharing of their personalised data. However, this is not the case with WhatsApp users.

(xv)        There appears to be no justifiable reason as to why users should not have any control or say over such cross-product processing of their data by way of voluntary consent, and not as a precondition for availing WhatsApp’s services.

(xvi)     Previously, users earlier had such control over sharing of their personal data with Facebook, in terms of an ‘opt-out’ provision available for 30 days in the previous policy updates. However, the same has not been made available to users this time. Thus, users are required to accept the unilaterally dictated ‘take-it-or-leave-it’ terms by a dominant messaging platform in their entirety, including the data sharing provisions therein, if they wish to avail their service. Such “consent” cannot signify voluntary agreement to all the specific processing or use of personalised data, as provided in the present policy.

(xvii)    The users have not been provided with appropriate granular choice, neither upfront nor in the fine prints, to object to or opt-out of specific data sharing terms, which prima facie appear to be unfair and unreasonable for the WhatsApp users.

(xviii)  On a careful and thoughtful consideration of the matter, the conduct of WhatsApp in sharing of users’ personalised data with other Facebook Companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users. The purpose of such sharing appears to be beyond users’ reasonable and legitimate expectations regarding quality, security and other relevant aspects of the service for which they register on WhatsApp.

(xix)      One of the stated purposes of data sharing viz. targeted advertisement  offerings on other Facebook products rather indicates the intended use being that of building user profiles through cross-linking of data collected across services. Such data concentration may itself raise competition concerns where it is perceived as a competitive advantage.

(xx)       The conduct of data-sharing by WhatsApp with Facebook apparently amounts to degradation of non-price parameters of competition viz. quality which result in objective detriment to consumers, without any acceptable justification.

It was thus held by the CCI that such conduct prima facie amounts to imposition of unfair terms and conditions upon the users of WhatsApp messaging app, in violation of the provisions of Section 4(2)(a)(i) of the Act. Given the pronounced network effects it enjoys, and the absence of any credible competitor in the instant messaging market in India, WhatsApp appears to be in a position to compromise quality in terms of protection of individualised data and can deem it unnecessary to even retain the user-friendly alternatives, such as ‘opt-out’ choices, without the fear of erosion of its user base. Moreover, the users, who do not wish to continue with WhatsApp, may have to lose their historical data as porting such data from WhatsApp to other competing apps is not only a cumbersome and time consuming process but, as already explained, network effects make it difficult for the users to switch apps. This would enhance and accentuate switching costs for the users who may want to shift to alternatives due to the policy changes.

Today’s consumers value non-price parameters of services viz. quality, customer service, innovation, etc. as equally if not more important as price. The competitors in the market also compete on the basis of such non-price parameters. Reduction in consumer data protection and loss of control over their personalised data by the users can be taken as reduction in quality under the antitrust law. Lower data protection by a dominant firm can lead to not only exploitation of consumers but can also have exclusionary effects as WhatsApp/Facebook would be able to further entrench/reinforce their position and leverage themselves in neighbouring or even in unrelated markets such as display advertising market, resulting in insurmountable entry barriers for new entrants.

 Data and data analytics have immense relevance for competitive performance of digital enterprises. Cross-linking and integration of user data can further strengthen data advantage besides safeguarding and reinforcing market power of dominant firms. For Facebook, the processing of data collected from WhatsApp can be a means to supplement the consumer profiling that it does through direct data collection on its platform, by allowing it to track users and their communication behaviour across a vast number of locations and devices outside Facebook platform.

Therefore, the impugned data sharing provision may have exclusionary effects also in the display advertising market which has the potential to undermine the competitive process and creates further barriers to market entry besides leveraging, in violation of the provisions of Section 4(2)(c) and (e) of the Act.

As per the 2021 update to the privacy policy, a business may give third-party service provider such as Facebook access to its communications to send, store, read, manage, or otherwise process them for the business. It may be possible that Facebook will condition provision of such services to businesses with a requirement for using the data collected by them. The DG may also investigate these aspects during its investigation.

THE PLEA OF WHATSAPP IN DELHI HIGH COURT

The WhatsApp by virtue of a writ petition bearing no. WP(C) Nos.4378/2021 captioned as WHATSAPP LLC Vs COMPETITION COMMISSION OF INDIA & ANR. WP(C) Nos.4378/2021 had challenged the above prima facie opinion and order of CCI passed on 24^th March 2021, on following premise:  

(i)              The impugned order passed by the CCI under Section 26(1) of the Competition Act, 2002, forming a prima facie opinion on alleged violation of Section 4 of the Act by whatsApp is bad in law;

(ii)            The direction to the Director General of CCI to cause an investigation into the WhatsApp 2021 Update to its Terms and Privacy Policy could not have been passed.

(iii)       Prior to 25.08.2016, the Agreement between WhatsApp and its users was governed by the Terms of Service and Privacy Policy of July, 2012.

(iv)       On 25.08.2016, WhatsApp updated its Terms and Services of Privacy Policy (hereinafter referred to as the ‘2016 Update’).

(v)             WhatsApp users prior to the 2016 update were given a one-time opportunity to ‘opt-out’ of Facebook using their WhatsApp account information.

(vi)       The users who joined WhatsApp after the release of 2016 Update, however, were not offered this ‘opt-out’ option.

(vii)     On 4th January, 2021, WhatsApp announced that it was updating the Terms of Service and Privacy Policy i.e  ‘2021 Update’. It is claimed by WhatsApp that the 2021 Update does not in any manner negate the choice of the user made under the 2016 Update and that it is applicable only to the users who had ‘opted-in’ to the 2016 Update as also the users who joined WhatsApp services after the 2016 Update, agreeing to those terms.

(viii)    The 2021 Update is aimed at providing users with further transparency about how WhatsApp collects, uses and shares data and to inform the users about how optional business messaging features work when certain business messaging features become available to them.

(ix)       The 2021 Update does not expand WhatsApp’s ability to share data with Facebook and does not impact the privacy of personal messages of the WhatsApp users.

(x)         It is further asserted that its 2021 Update has been challenged in several judicial fora, including before the Supreme Court. The intervener therein i.e Internet Freedom Foundation have filed applications seeking to restrain WhatsApp from implementing the 2021 Update. The said applications are pending before the Supreme Court.

(xi)       The Order passed by the CCI is unsustainable on the premise that the 2021 Update pending is under challenge before the Supreme Court and before Delhi High Court and suo moto action  by CCI is therefore untenable.

(xii)     The judicial discipline ordains that CCI refrains from adjudicating on the said issues till the same are pronounced upon by the Supreme Court and/or Delhi High Court in the appropriate pending proceedings. The pendency is as regards “as to whether the sharing of the information available with WhatsApp with Facebook violates the right of privacy of the users protected under Article 21 of the Constitution of India, and whether the WhatsApp is under any legal obligation to provide an ‘opt-out’ facility to their users,

(xiii)    The Facebook Inc. claimed that it is merely the parent company of WhatsApp LLC, and the 2021 Update is in relation to the Terms of Service and Privacy Policy offered by WhatsApp alone. The said update is not applicable for the Facebook users and hence, Facebook could not have been added as a party in such an investigation into WhatsApp’s Terms and Conditions of Service to its users.

The contention of CCI BEFORE HIGH COURT

(a)             Apart from the issues which are pending before the Supreme Court in SLP(C) No.804/2017 or before Delhi High Court, the CCI is examining the 2021 Update, in relation to any violation of the provisions of Section 4 of the Competition Act, 2002 and it is being examined as to whether the excessive data collection by WhatsApp and the use of the same has any anti-competitive implications. The concentration of data in the hands of WhatsApp may itself raise competition concerns, thereby, resulting in violation of the provisions of Section 4 of the Act.

(b)            The reliance was placed a recitation by hon’ble Supreme Court in a matter captioned as Competition Commission of India vs. Steel Authority of India Ltd. (2010) 10 SCC 744 and impugned Order has been passed by CCI under Section 26(1) of the Act and it does not determine any rights or obligations of the parties; it is only administrative in nature; and is not appealable.

(c)            The WhatsApp in the present petitions were not even entitled to a notice or hearing before passing of the order under Section 26(1) of the Act and therefore, cannot be heard in challenge to such an order.

The finding of hon’ble Delhi High Court

While delving in the scope and ambit of an order passed under Section 26(1) of the Act, the hon’ble Delhi High Court  has held that the issue has authoritatively explained by the Supreme Court in Steel Authority of India Ltd. (supra), while holding as under:-

“In contradistinction, the direction under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a departmental proceeding which does not entail civil consequences for any person, particularly, in light of the strict confidentiality that is expected to be maintained by the Commission in terms of Section 57 of the Competition Act 2002 and Regulation 35.

Wherever, in the course of the proceedings before the Competition Commission (CCI), the Commission passes a direction or interim order which is at the preliminary stage and of preparatory nature without recording findings which will bind the parties and where such order will only pave the way for final decision, it would not make that direction as an order or decision which affects the rights of the parties and therefore, is not appealable.

The jurisdiction of the CCI is to act under the provision, does not contemplate any adjudicatory function. The Commission is not expected to give notice to the parties i.e. the informant or the affected parties and hear them at length, before forming its opinion. The function is of a very preliminary nature and in fact, in common parlance, it is a departmental function. At that stage, it does not condemn any person and therefore, application of audi alteram partem is not called for. Formation of a prima facie opinion departmentally (the Director General, being appointed by the Central Government to assist the Commission, is one of the wings of the Commission itself) does not amount to an adjudicatory function but is merely of administrative nature. At best, it can direct the investigation to be conducted and report to be submitted to the Commission itself or close the case in terms of Section 26(2) of the Act, which order itself is appealable before the Tribunal and only after this stage, there is a specific right of notice and hearing available to the aggrieved/affected party. Thus, keeping in mind the nature of the functions required to be performed by the Commission in terms of Section 26(1), the high court was of the considered view that the right of notice or hearing is not contemplated under the provisions of Section 26(1) of the Act. The functions performed by the Commission under Section 26(1) of the Act are in the nature of preparatory measures in contrast to the decision-making process. That is the precise reason that the legislature has used the word "direction" to be issued to the Director General for investigation in that provision and not that the Commission shall take a decision or pass an order directing inquiry into the allegations made in the reference to the Commission.

The above reasoning and the principles enunciated, which are consistent with the settled canons of law. In this backdrop, the high court has held that the provisions of Section 26 of the Act under its different subsections, requires the Commission (CCI) to issue various directions, take decisions and pass orders, some of which are even appealable before the Tribunal. Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analysing and deciding the rival contentions raised before the Commission by the parties. The Commission is expected to express prima facie view in terms of Section 26(1) of the Competition Act, 2002 without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its other orders and decisions should be well reasoned. At this stage, the CCI was merely to form a prima facie opinion for directing an investigation to be carried out by the Director General. It has not to give any final conclusions on the merit of the violation alleged or on the defence of the WhatsApp. The order passed under Section 26(1) of the Act is purely administrative in nature and does not entail any consequence on the civil rights of whatsApp. The Impugned Order could also have been passed without notice or without granting an opportunity of hearing to whatsApp, in view of the settled legal proposition.  Though the CCI is expected to give reasons in the order, however, as it was not to give any conclusive findings but is to form only a prima facie opinion to order an investigation, hence, it need not deal with all the submissions of an aggrieved entity in detail. The writ petition no. 4378/2021 preferred by WhatsApp  against the CCI was thus dismissed by hon’ble high court, more particularly, in the light of below mentioned judgments/precedents.

S.N	PARTICULARS	REMARK
1.	Justice (Retd) K.S. Puttaswamy Vs Union of India (2017)10 SCC 1	The verdict upheld Section 139AA of the Income Tax Act, 1961, that makes it mandatory to quote one’s Aadhaar ID when filing tax returns or for allotment of Permanent Account Number. But it said that making Aadhaar mandatory to open a bank account or maintain an existing account violates the right to privacy. The circular mandating linking Aadhaar with a mobile number was also declared illegal and unconstitutional.
2.	Competition Commission of India vs. Bharti Airtel Limited & Ors., (2019) 2 SCC 521	The matter related to TRAI (Telecom Regulator) and in the light of existing regulator i.e TRAI, the CCI was restrained from going ahead with the hearing. There is no  applicability of that case in WhatsApp case.
3.	Competition Commission of India Vs Steel Authority of India Ltd. (2010) 10 SCC 744	Section 26(1) of the Act and it does not determine any rights or obligations of the parties; it is only administrative in nature; and is not appealable.
4.	P. Sudhakar Rao & Ors. vs. U. Govinda Rao & Ors., (2013) 8 SCC 693	Pendency of matter before larger bench does not denude the court to deal with issues
5.	Ashok Sadarangani and Anr. vs. Union of India and Ors., AIR 2012 SC 1563	The pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference
6.	Karmanya Singh Sareen & Anr. vs. Union of India & Ors W.P.(C) 7663/2016	If the users opt for completely deleting “WhatsApp” account before 25.09.2016, the information/ data/details of such users should be deleted completely from “WhatsApp” servers and the same shall not be shared with the “Facebook” or any one of its group companies.

REMARK

The CCI in fact has joined its global counterpart of Germany, Italy and Turkey where such an investigation is pending as regards data sharing between facebook and WhatsApp. It appears to be the effort of monetizing data in the garb of alleged better service. In fact, earlier the Germany court has concluded that Facebook is dominant in social media network and is abusing dominance and it was barred from combining user data from its subsidiary WhatsApp, Oculus, Masqquerade & Instagram without free consent and that s being reviewed by European Courts of Justice. Similarly, in 2017, substantive fine was reported to be imposed on WhatsApp in Italy for sharing personal data of user from Facebook.

It appears that the WhatsApp has prima facie concluded that it is dominant in the relevant market for Over-the-Top (OTT) messaging apps through smart phones in India; due to lack of/restricted interoperability between platforms. The users may find it difficult to switchover to other applications except at a significant loss. There is opacity, vagueness, open-endedness and incomplete disclosures in the 2021 Update on vital information categories; concentration of data in WhatsApp and Facebook itself may raise competition concerns; data-sharing amounts to degradation of non-price parameters of competition.The free consent appears to be a casualty and take it or leave it shall imply abuse of dominance. In a data driven world, the WhatsApp and Facebook is seeking to abuse their dominance and that may not be permissible in the teeth of provisions of Competition act 2002. The appeal bearing LPA No. 163/2021 is already preferred by the WhatsApp LLC and also by Facebook INC (LPA 164/2021) before the Division Bench of hon’ble Delhi High Court. Surely, we have not finally heard of the issue.

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