Delhi High Court reserves order on WhatsApp, Facebook pleas against CCI probe into WhatsApp’s new privacy policy

The Delhi High Court on Monday reserved judgment on appeals filed by WhatsApp & Facebook (now Meta) challenging single-judge bench's order refusing to stay the probe by Competition Commission of India (CCI) into WhatsApp's new privacy policy.

A division bench of Justice Satish Chandra Sharma and Justice Subramonium Prasad reserved the order in the petition filed by WhatsApp and its parent company Meta.

CCI had ordered an investigation into the app's new privacy policy last year on its own, claiming that it violated the Competition Act of 2000. The commission had issued notices to both platforms, claiming that their privacy policies were neither transparent nor based on users' voluntary consent.

The commission dubbed the new terms and conditions "take-it-or-leave-it," claiming that they lacked clarity and did not provide users with a clear understanding of them.

Additional Solicitor General (ASG) N Venkataraman appearing for CCI on Monday contended that its jurisdiction to investigate WhatsApp’s new privacy policy is not closed as the policy in question is neither withdrawn nor stayed by any court or by any judicial forum. So, the CCI is well within its power to continue its investigation, he asserted.

Meanwhile, Counsel appearing for WhatsApp argued that as the privacy policy in question is being reviewed by the Supreme Court, the investigation cannot proceed until that matter is resolved.

It was also claimed that the messaging platform's messages are end-to-end encrypted, which means that no third party can read them. He also stated that platform users had willingly accepted the new privacy policy and that they could opt out if they so desired.

On the Contrary, Senior Advocate Mukul Rohtagi appearing for Meta submitted that Meta and Whatsapp are separate platforms and that Meta cannot be made a party to the case simply because it is the parent company.

While opposing the CCI investigation against Meta, Rohtagi further argued that there is no prima facie evidence available that Meta abused its parent status to gain an advantage in this case.

During the previous hearing, the CCI informed the High Court that it was unable to continue its investigation into WhatsApp's privacy policy for 2021.

Last year, the High Court gave both platforms time to file responses in connection with the investigation. The CCI had told the High Court that the case was "virtually suspended" and that it should be allowed to investigate the messaging platform's privacy policies.

On January 3, a bench led by then-Chief Justice DN Patel extended the deadline for Facebook and WhatsApp to respond to two CCI notices dated June 2021, asking them to submit information to assist the CCI's investigation.

WhatsApp and Facebook (now Meta) had challenged the order issued by a single judge in April last year, allowing the CCI to conduct its investigation. The Court, however, observed that it would be appropriate for CCI to wait for the Supreme Court's decision on the privacy policy.

In response to this claim, the CCI stated that the platforms were stalking customers for targeted ads and thus abusing their position of power. So it is only natural to continue the investigation.

Case Title: WhatsApp LLC v. CCI, Facebook v. CCI

[Inputs: Business Standard]