Delhi High Court reserves order in OTT’s challenge to CCI order directing probe into platform's 2021 policy

  • Pankaj Bajpai
  • 12:46 AM, 14 Apr 2021

Delhi High Court Single Bench of Justice Navin Chawla reserved its order on Facebook & Watsapp’s plea challenging Competition Commission’s order for direction of investigation into OTT Platform’s privacy policy of 2021.

Previously, the Competition Commission of India (CCI) called for an investigation into allegations of abuse of dominance leveled against WhatsApp in relation to its privacy policy. Since, Facebook has acquired Watsapp, it had challenged the CCI decision before the Delhi High Court.

While arguing the matter, Harish Salve said that the present case is not of competition issue. He said that recently, WhatsApp came up with an updated policy where they had given an opt-out for pre-2016 customers.

“Privacy is a constitutional concept and hence, it is not for the CCI to decide. When the Sectoral regulator is examining, CCI can't see the competitive aspect to get involved. What should be privacy policy can't change from one service provider to another” said Salve

Salve further said that WhatsApp could not see and moreover, user conversation was protected by end to end encryption. The data sharing was for business accounts, he clarified.

When matter is already pending in every court, can suo motu be exercised that too against both WhatsApp and Facebook? Mukul Rohatgi asks and says that CCI must respect HC and SC, as this would count as an abuse of Suo moto.

Then Additional Solicitor General of India Aman Lekhi argues that who is calling whom, thru which device, when and for what purpose, is absurd. The customer profiling and consumer preference will be monetized and lead to network effect. It is open for both WhatsApp and Facebook to dominate and abuse.

“Whether it is discriminatory is in the domain of the Commission. Surpreme Court will not deal with competition facet, rather it would deal with with privacy facet. Further, data and data is meta data which would be utilized and impair competition. It would be borne out of investigation” said Lekhi.

Senior Advocate Amit Sibal argued that the jurisdictional fact of inquiry is that privacy policy is unfair to user. Is that pending before the Surpreme Court and High court? He questioned.