other words, this is neither an aggravating factor nor a mitigating one for the purpose of the within assessment.
Article 83(2)(k): any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement 785. The relevant considerations arising under this heading are as follows: a. WhatsApp does not charge users in the context of the Service. b. The Article 14 infringement relates to the processing of non-user data pursuant to the activation, by users, of the Contact Feature. According to WhatsApp393, the Contact Feature is a “popular” voluntary feature of the Service. Non-user data is processed by way of the Contact Feature so as to be able to “quickly and conveniently update [a user’s] contacts list on the Service as and when any of those non-users join the Service394.” In this way, the Contact Feature envisages, and is directed to facilitating, the continued growth of WhatsApp’s userbase. c.
While the continued growth of WhatsApp’s user-base will not necessarily result in a direct financial benefit in the form of new subscription fees, it will increase WhatsApp’s presence on the market and thereby potentially increase its value. I note, in this regard, the information provided in the Facebook FAQ395, that: “We can also count how many unique users WhatsApp has … . This will help WhatsApp more completely report the activity on our service, including to investors and regulators.” [emphasis added]
d. The question that arises, therefore, is whether or not a more transparent approach to the data protection issues arising in the context of the Contact Feature would have a positive, negative or neutral effect on the continued growth of WhatsApp’s user base. I expressed the view, in the Supplemental Draft, that a more transparent approach to the Contact Feature would represent a risk factor for the continued growth of WhatsApp’s user base in circumstances where existing and prospective users might be encouraged, by concerned non-users, to opt for an alternative service that does not process the personal data of non-users. WhatsApp’s Response and Assessment of Decision-Maker 786. In response, WhatsApp submits396 that the “reasoning that a more transparent approach would represent a risk factor to the continued growth of WhatsApp’s user base is not supported by any evidence, and appears to be based on a number of incorrect assumptions.”. It submits, in this regard, that: a. No account appears to have been taken of the fact that users themselves are free to choose whether or not to use the Contact Feature as part of the Service.
393
Response to Investigator’s Questions, WhatsApp’s answer to question 3 Response to Investigator’s Questions, WhatsApp’s answer to question 3a. 395 Available at https://faq.whatsapp.com/general/26000112/?eea=1 (the “Facebook FAQ”) 396 The Supplemental Draft Submissions, paragraphs 15.2 to 15.6 (inclusive) 394
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