Delhi High Court dismisses appeal filed against probe by CCI into WhatsApp's new privacy policy

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

A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad today held that the plea was devoid of merits.

In July this year, the High Court had reserved its 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that its jurisdiction to investigate WhatsApp’s new privacy policy is not closed as the policy in question is neither withdrawn nor stayed by any court or by any judicial forum.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.

In May last year, Division Bench of Chief Justice DN Patel & Justice Jasmeet Singh had issued notice in an appeal against dismissal of petition filed by Facebook & Whatsapp challenging the CCI’s order for probe.

The appeal was filed against the order dated April 22, 2021 passed by Single Bench of Justice Navin Chawla wherein, Whatsapp’s & Facebook’s appeal against the order dated March 24, 2021 passed by the CCI in Re: Updated Terms of Service and Privacy Policy for WhatsApp Users (Suo Moto Case No. 01 of 2021) vide which the Commission ordered a probe into Whatsapp updated privacy policy for breaching Competition Law was dismissed.

Justice Chawla had noted that CCI’s order could not be quashed merely because it did not await the outcome of the cases pending before the Supreme Court & High court. The court said that it did not see any merits in the petitions of Facebook & Whatsapp to interdict the investigation directed by the CCI.

The investigation ordered u/s 26(1) of the Competition Act, 2002 came against the backdrop of registration of a Suo Moto case by CCI after various media reports reporting of WhatsApp Inc’s updated privacy policy & terms of service as per which WhatsApp users were mandatorily required to accept the terms & conditions to retain their WhatsApp account information.

Case Title: WhatsApp LLC vs. CCI