Current AffairsIndia

Delhi HC issues notice in WhatsApp, Facebook appeal against Single Judge Order refusing to set aside CCI probe

The Delhi High Court today issued notice in the appeal filed by WhatsApp and Facebook against Single Judge Order refusing to set aside the Competition Commission of India (CCI) probe into the messaging platform’s privacy policy (Facebook v. CCI, WhatsApp v. CCI).

Response from CCI was sought by a Division Bench of Chief Justice DN Patel and Justice Jasmeet Singh.

Before the Single Judge, WhatsApp argued that CCI “jumped the gun” by starting suo moto proceedings in relation to WhatsApp’s privacy policy of 2021 when the issue was pending before two constitutional courts – the Supreme Court and the Delhi High Court.

The Single Judge, however, refused to interfere with the CCI order merely on the ground that the anti-trust authority should await the outcome of the pending cases before the Supreme Court and the High Court.

The Single Judge further recorded that WhatsApp and Facebook mounted an independent challenge to the Commission’s order without moving an application before the Supreme Court and the High Court for clarification, and hence the same was not maintainable.

Facebook’s stand that an investigation could have been ordered against it was also rejected.

As per CCI, the issue before it is only with respect to the anti-competitive aspect of the policy, and that there was no clash with the courts on issues of privacy.

Senior Advocate Harish Salve appeared for WhatsApp and Senior Advocate Mukul Rohatgi appeared for Facebook.

On March 24 this year, the CCI called for an investigation into allegations of abuse of dominance levelled against WhatsApp in relation to its privacy policy. The Commission had held,

“Simply put, it appears that consent to sharing and integration of user data with other Facebook Companies for a range of purposes including marketing and advertising, has been made a precondition for availing WhatsApp service.”

The CCI further took note of the “lock-in” effect of using an app as widely used as WhatsApp, and opined that the scope of sharing information may extend beyond the categories expressly mentioned in the policy.

On the use of personal data of the users, the order states,

“…there appears to be no justifiable reason as to why users should not have any control or say over such cross-product processing of their data by way of voluntary consent, and not as a precondition for availing WhatsApp’s services.”

Such conduct, the CCI concluded appears to be in contravention of Section 4 of the Competition Act, which prohibits abuse of dominance.


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