WhatsApp Probe Must Go on as Privacy Policy Not Withdrawn, Delhi HC Told

The Competition Commission of India (CCI) Monday informed the Delhi High Court that WhatsApp’s up to date privateness coverage of 2021 has not been withdrawn and its probe in regards to the coverage needs to be allowed to proceed. The CCI additionally mentioned the scope of its inquiry has no overlap with the problem of an alleged infringement of consumer privateness pending earlier than the Supreme Court. The submissions had been made by CCI earlier than a bench headed by Chief Justice Satish Chandra Sharma on appeals by WhatsApp LLC and Facebook Inc towards a single-judge order dismissing their problem to the probe ordered by the CCI into the moment messaging platform’s up to date privateness coverage.

The bench, additionally comprising Justice Subramonium Prasad, reserved an order on the appeals after listening to the involved events.

In January final 12 months, CCI by itself had determined to look into WhatsApp’s up to date privateness coverage primarily based on information stories relating to the identical.

WhatsApp and Facebook had subsequently challenged earlier than the one decide CCI’s March 2021 order directing a probe towards them, saying that the problem regarding its new coverage was already pending consideration earlier than the excessive courtroom and the Supreme Court.

The single decide on April 22 final 12 months had, nevertheless, refused to interdict the investigation directed by the CCI.

Additional Solicitor General (ASG) N Venkataraman, showing for CCI, argued that the CCI probe into the privateness policy– which is “still in place and functional” — shouldn’t be deferred any additional to await the choice of the Supreme Court, particularly within the absence of any keep on the one decide order, and asserted that the messaging platform was nonetheless issuing a “pop up” searching for the consent of customers who’re but to just accept the up to date coverage.

“Judicial process cannot be used 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 allowed to investigate. There is no overlap in law,” he argued The ASG mentioned that the infraction on the competitors legislation entrance should be taking place as there are customers who’ve opted for the coverage replace and “for non-withdrawal period”, the coverage needs to be “examined.” ASG Balbir Singh, also appearing for CCI, defended 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 shared”.

ASG Venkataraman contended 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.

He also said that unless there is a lack of jurisdiction or malafides or arbitrariness, the CCI probe cannot be stalled.

Counsel Tejas Karia, appearing for WhatsApp, said that the “status quo” was being maintained for users who have not opted for the policy update and the CCI probe should be deferred in view of the validity of the privacy policy being tested before the Supreme Court and the high court.

Last week, senior advocate Harish Salve, representing WhatsApp, submitted that it was challenging CCI’s jurisdiction to probe a policy that has now been 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 argued 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 argued before the single judge that the new privacy policy of WhatsApp would lead to excessive data collection and “stalking” of consumers for targeted advertising to bring in more users and is, therefore, alleged abuse of dominant position.

On January 3, while dealing with the appeals against the single judge order, a bench headed by then Chief Justice DN Patel extended 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 conducted by it.