CCI apprises Delhi High Court of its reserved order on WhatsApp

CCI apprises Delhi High Court of its reserved order on WhatsApp

The anti-trust regulator had ordered a thorough investigation to ascertain the extent, and impact of data-sharing through involuntary consent of users

The Competition Commission of India (CCI) has informed the Delhi High Court that its jurisdiction to investigate WhatsApp's new privacy policy is not closed. It has neither been withdrawn nor stayed by any judicial forum.

A high court's division bench comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad reserved the order in the appeals filed by WhatsApp and its parent company Meta against a single-bench order declining to interfere with CCI's investigation into WhatsApp's new privacy policy.

Appearing for CCI, Additional Solicitor General (ASG) N. Venkatraman submitted that its investigation into WhatsApp's new privacy policy cannot be stalled using the judicial process. He submitted, "When there is no judicial infirmity, the investigation should go on."

ASG Venkatraman further informed the court that there was no overlap of its inquiry under the Competition Act, 2000, with the issue of the violation of right to privacy pending adjudication before the apex court. He stated that CCI exercised prudence correctly as it had the jurisdiction to enquire about the privacy policy.

Appearing for WhatsApp, advocate Tejas Karia rebutted the submissions stating that as per the judicial discipline, if the highest authority of the country (Supreme Court) was examining the validity of its privacy policy, then it would not be open for any authority to commence the investigations.

He argued that the CCI may proceed with the investigation, as it was not barred in terms of jurisdiction. However, the authority must await the findings of the Supreme Court.

Karia further informed the court that WhatsApp had taken informed consent while rolling out the privacy policy and that the users had complete freedom to opt-in or out of the same. He said that no user data was shared with any other person while sending messages. Even during the transmission process, the messages are end-to-end encrypted.

While appearing for Meta, senior advocate Mukul Rohatgi submitted that mere ownership (Meta's ownership of WhatsApp) could not be a reason for CCI to involve it in its investigation.

He argued that there was no prima facie material with the CCI to start an investigation on the basis that Facebook had abused its dominant position.

The CCI had ordered a probe into the new privacy policy of WhatsApp after making a prima facie observation that it was violative of the Competition Act.

It had issued notices to both WhatsApp and its parent company while observing that the privacy policy terms on sharing of personalized data with Facebook companies were "neither fully transparent nor based on the specific, voluntary consent of users."

The anti-trust regulator observed that the policy was an abuse of dominant position resulting in a violation of Section 4 of the Competition Act. It said the privacy policy's 'take-it-or-leave-it' terms set by the dominant messaging platform were without providing much information to the users. Therefore, it appeared to be "unfair and unreasonable."

The CCI bench comprising Ashok Kumar Gupta (Chairperson), Sangeeta Verma (Member), and Bhagwant Singh Bishnoi (Member), observed, "A thorough and detailed investigation is required to ascertain the full extent, scope and impact of data sharing through involuntary consent of users."

The Commission directed the Director-General to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Competition Act. It also ordered the completion of the investigation and submission of the report within 60 days.