Competition Commission of India (CCI) told the Delhi High Court that WhatsApp’s updated privacy policy of 2021 has not withdrawn and its probe concerning the policy should be allow to proceed.
The CCI also said the scope of its inquiry has no overlap with the issue of an alleged infringement of user privacy pending before the Supreme Court.
The submissions were made by CCI before a bench head by Chief Justice Satish Chandra Sharma on appeals by WhatsApp LLC and Facebook Inc against a single-judge order dismissing their challenge to the probe order by the CCI into the instant messaging platform’s update privacy policy.
The bench, also comprising Justice Subramonium Prasad, reserve an order on the appeals after hearing the concern parties.
In January 2022, CCI on its own had decide to look into WhatsApp’s update privacy policy based on news reports regarding the same.
WhatsApp and Facebook had subsequently challenge before the single judge CCI’s March 2021 order directing a probe against them, saying that the issue concerning its new policy was already pending consideration before the high court and the Supreme Court.
The single judge on 22nd April 2021 had, so, refuse to interdict the investigation direct by the CCI.
Additional Solicitor General (ASG) N Venkataraman, appearing for CCI, argue that the CCI probe into the privacy policy, which is “still in place and functional” should not be defer any further to await the decision of the Supreme Court, especially in the absence of any stay on the single judge order, and assert that the messaging platform was still issuing a “pop up” seeking the consent of users who are yet to accept the updated policy.
“Judicial process cannot be use to thwart investigation …. (Pendency of privacy issue before Supreme Court) cannot automatically obviate competition law concerns. There is no overlap in facts. We should be allow to investigate. There is no overlap in law,” N Venkataraman argue The ASG said that the infraction on the competition law front may still be happening as there are users who have opt for the policy update and “for non-withdrawal period”, the policy has to be “examine.”
ASG Balbir Singh, also appearing for CCI, defend the initiation of a probe against Facebook as well in connection with WhatsApp’s privacy policy, saying that the former is the holding company of the messaging platform and it can “potentially exploit the data being share”.
ASG Venkataraman contend that the outcome of the Supreme Court proceedings would have no bearing on the proceedings under competition law which concerns the abuse of dominant position by a market player.
N Venkataraman also said that unless there is a lack of jurisdiction or malafides or arbitrariness, the CCI probe cannot be stall.
Counsel Tejas Karia, appearing for WhatsApp, said that the “status quo” was being maintain for users who have not opt for the policy update and the CCI probe should be defer in view of the validity of the privacy policy being test before the Supreme Court and the high court.
Last week, senior advocate Harish Salve, representing WhatsApp, submit that it was challenging CCI’s jurisdiction to probe a policy that has now kept in abeyance and as the government was in the process to bring the Data Protection Bill.
Senior advocate Mukul Rohatgi, appearing for Facebook Inc now Meta Platforms had argue that there was not even prima facie material in the case and CCI cannot investigate it in a “creeping fashion”.
While dismissing the petitions against the CCI probe, the single judge had opined that although it would have been “prudent” for the CCI to await the outcome of petitions in the Supreme Court and the Delhi High Court against WhatsApp’s new privacy policy, not doing so would not make the regulator’s order “perverse” or “wanting of jurisdiction”.
CCI had argue before the single judge that the new privacy policy of WhatsApp would lead to excessive data collection and “stalking” of consumers for target advertising to bring in more users and is, therefore, alleged abuse of dominant position.
On 3rd January 2022, while dealing with the appeals against the single judge order, a bench head by then Chief Justice DN Patel extend the time for filing replies by Facebook and WhatsApp to two CCI notices of June 2021 asking them to furnish certain information for the purpose of inquiry conduct by it.
