WhatsApp privacy policy in place; probe must go on: CCI to High Court

Appeal was against earlier order refusing to stay CCI probe into WhatsApp's new privacy policy

The Delhi High Court on Monday reserved its orders against an appeal filed by WhatsApp and Facebook (now Meta) challenging the order of a single judge that refused to stay the Competition Commission of India (CCI) probe into WhatsApp's new privacy policy.

The Bench led by Delhi High Court Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad reserved an order in the appeal filed by WhatsApp and its parent company Meta. The appeal was filed against a single Bench the order refusing to interfere with Competition Commission of India’s (CCI’s) investigation into the messaging platform’s new privacy policy.

The CCI had ordered a probe into the new privacy policy of the app last year on its own saying the policy violated the Competition Act 2000. The commission had issued notices to both the platforms saying the privacy policies of both companies were neither transparent nor based on the voluntary consent of the users.

The commission labeled the new terms and conditions as ‘take-it-or-leave-it', saying that they lacked clarity and did not give a clear understanding of it for the users.

Additional Solicitor General N Venkatraman, appearing for CCI, said on Monday that since the said probe has not been disallowed by any judicial forum, the CCI was well within its powers to continue its investigation.

Meanwhile, the counsel for Whatsapp argued that the privacy policy in question is being examined by the apex court and so the investigation cannot be allowed until that matter is resolved.

The counsel further argued that the messages on the messaging platform are end-to-end encrypted meaning that no third party can read the messages. He also said that the users of the platform had willingly accepted the new privacy policy and they can opt out of it if they desire.

On the other hand, the counsel for Meta said that Meta and Whatsapp were different platforms and Meta cannot be made party to the case just because it is the parent company. Moreover, there is no evidence to show that Meta has abused its parent status to gain an advantage in this case, the counsel said.

During the last hearing, the CCI told the HC that it was not able to proceed with its investigation into Whatsapp’s privacy policy of 2021. The court had last year allowed time for both the platforms to file replies in connection with the investigation. The CCI had told the court that there was ‘virtually a stay’ on the case proceedings and that it should be allowed to look into the messaging platform’s privacy policy.

"The investigation is 16 months old. We are not able to move an inch. We must be allowed to investigate," the CCI’s counsel said. The court on Thursday said that there was no stay on the proceedings and asked the two platforms to file replies for consideration.

On January 3, a bench headed by then Chief Justice DN Patel extended the time for filing replies by Facebook and WhatsApp to two CCI notices of June 2021 asking them to submit information to help with CCI’s inquiry.

WhatsApp and Facebook had challenged the order by a single judge in April last year which allowed CCI to proceed with its investigation. The judge had however observed that it would be prudent of CCI to wait for the apex court’s order regarding the privacy policy.

The CCI, replying to this contention, had said that the platforms were stalking the customers for targeted ads and were thus abusing their position of power. So it is only right to proceed with the investigation, it had said.