HC to pass judgment tomorrow on WhatsApp, Facebook plea against CCI probe

The Division bench of Delhi High Court will pass judgment on Thursday on petitions filed by WhatsApp and Facebook challenging a Competition Commission of India (CCI) order for an investigation into the messaging app's new privacy policy.

The bench of Justice Satish Chandra Sharma and Justice Subramonium Prasad on Thursday will pass the judgment. The bench kept the order reserved on July 25, 2022 after completion of all the submissions by all sides.

Appearing for Facebook Inc, senior advocate Mukul Rohatgi submitted that because Facebook is the formal owner of WhatsApp and the platform is said to share its data with Facebook (parent company) doesn't mean that it is a necessary party to investigate. While opposing the CCI probe against Facebook, Rohatgi further argued that there is no prima facie material available with the CCI to proceed with while conducting the investigation on WhatsApp's new privacy policy.

The Division bench was hearing the petitions of WhatsApp and Facebook challenging the single bench, which had dismissed Facebook and WhatsApp petitions.

However, Additional Solicitar General appeared for CCI submitted that its jurisdiction to investigate WhatsApp's new privacy policy is not closed as the policy in question is neither withdrawn nor stayed by any court or by any judicial forum. Earlier CCI counsel said "we presently are not able to move forward with the investigation as the matter is examined by this court."

Earlier in the hearing, the Bench noted that the Data Protection Bill is yet to be finalised by the respondents/Centre while granting time to WhatsApp and Facebook to file their response over notice issued to them by CCI sought several details from them. Court also extended the interim order granted to appellant by earlier by the court.

Earlier, senior advocate Harish Salve appearing for WhatsApp LLC informed the court that we are insisting to file response on CCI notices despite the matter pending before the courts and under judicial consideration.

WhatsApp was sent a notice on June 4, 2021 while Facebook was sent a notice on June 8, 2021 by CCI seeking information and response to certain queries.

Earlier, the Delhi HC urged the DG, CCI to bear in mind that investigation against the appellant (WhatsApp and Facebook) is under judicial consideration before a Division Bench of this court. Bench also states that, In our view, there is no doubt that the issuance of impugned notice by the DG is a step in furtherance of the investigation commenced in Suo-Motu case, which investigation is subject matter of the challenge in the present LPA.

"We do not consider it appropriate to stay the operation of impugned notice dated 04.06.2021, at this stage," said Delhi High Court Bench.

Facebook and Whastapp had approached Division bench through an appeal challenged single-judge bench order dismissing their pleas against CCI decision.

The single bench of Delhi High Court on April 22, 2021 had dismissed Facebook and WhatsApp pleas challenging a CCI order for an investigation into the messaging app's new privacy policy. The petitioners had challenged the March 24 order passed by CCI directing a probe into the new privacy policy and the probe should be completed within 60 days.

Facebook and WhatsApp said that since the issue of WhatsApp's privacy policy is being heard by the Supreme Court, High Court therefore, there was no requirement of CCI to order the probe. Senior Advocate Harish Salve and former Attorney General Mukul Rohatgi appeared for the petitioners and had told the court that CCI proceedings must be kept in abeyance as the matter is pending before Supreme Court and High Court.

Additional Solicitor General (ASG), who represented CCI in the matter, had earlier told the court that the matter is not of privacy but access to data and the Competition is going to deal with metadata.