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By Fiona Mehta

 

The Competition Commission of India (CCI) told the Delhi High Court that WhatsApp’s updated privacy policy of 2021 has not been withdrawn, and its probe concerning the privacy policy should be allowed to proceed.

The CCI stated that the subject matter of its investigation does not pertain to a case involving alleged violations of user privacy that is currently before the Supreme Court of India.

The appeals by WhatsApp LLC and Facebook Inc. against a single-judge ruling dismissing their challenge to the investigation the CCI ordered into the amended privacy policy of the instant messaging platform were heard by a bench presided over by Chief Justice Satish Chandra Sharma. The bench, also comprising Justice Subramonium Prasad, reserved order on the appeals after hearing the concerned parties.

Based on news reports about WhatsApp’s amended privacy policy, CCI independently chose to investigate it in January of last year. In March 2021, CCI judgement ordering a probe into them was later contested by WhatsApp and Facebook in front of the single judge, claiming that the Supreme Court and the High Court were already debating the matter involving their new policy.

However, on April 22 2021, the sole judge had declined to block the CCI’s probe. In an appearance on behalf of CCI, Additional Solicitor General (ASG) N Venkataraman argued that the investigation into the privacy policy, which is “still in place and functional,” should not be delayed any longer while waiting for the Supreme Court’s ruling, particularly in the absence of any stay on the single judge order. He also claimed that the messaging platform was still sending “pop up” requests for users’ permission who have not yet accepted the updated policy.

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 added that the CCI investigation cannot be stopped unless there is a lack of jurisdiction, malfeasance, or arbitrariness.

Tejas Karia, a lawyer for WhatsApp, said that the “status quo” was being upheld for users who had not chosen the policy update and that the CCI investigation should be postponed in light of the privacy policy’s legality being challenged in front of the Supreme Court and the high court.

In a submission made last week in 2022, senior attorney Harish Salve on behalf of WhatsApp said that the company was contesting the CCI’s authority to look into a policy that had been put on hold while the government was introducing the Data Protection Bill.

The case lacked even prima facie evidence, according to senior attorney Mukul Rohatgi, who was representing Facebook Inc. (formerly known as Meta Platforms), and CCI could not probe it in a “creeping fashion.” Although it would have been “prudent” for the CCI to await the outcome of challenges in the Supreme Court and the Delhi High Court against WhatsApp’s new privacy policy, the solitary judge had ruled that doing so would not have made the regulator’s ruling “perverse” or “wanting of jurisdiction.”

The 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.