Unable to Move Forward in Probe Against WhatsApp, Facebook: CCI Tells Delhi High Court

The Competition Commission of India (CCI) Thursday told the Delhi High Court that it was not able “move an inch” in its investigation into WhatsApp’s privacy policy of 2021 on account of a court order granting time to Facebook and the instant messaging platform for filing replies in connection with the probe.

The CCI told a bench headed by Chief Justice Satish Chandra Sharma that there was “virtually a stay” on the proceedings and the anti-trust regulator must be allowed to carry out its investigation and Facebook and WhatsApp must be asked to file their replies.

The bench, also comprising Justice Subramonium Prasad, was hearing appeals of WhatsApp and Facebook challenging a single-judge order dismissing their pleas against the probe ordered by the CCI into the instant messaging platform’s updated privacy policy.

“The investigation is 16 months old. We are not able to move an inch. We must be allowed to investigate,” the senior lawyer said.

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 furnish certain information for the purpose of inquiry conducted by it.

The court, on Thursday, orally observed that “there was no stay order” concerning the probe and opined that the two companies should file their reply before CCI and listed the case for further consideration on July 22.

A lawyer appearing for the appellants said that their appeals would become infructuous if the interim protection is taken away and informed that a preliminary reply has already been filed before the CCI.

A senior lawyer appearing for Facebook India urged the court to defer the hearing on the appeal, saying that the case involves “issues of significance”.

In January last year, the CCI on its own had decided to look into WhatsApp’s updated privacy policy based on news reports regarding the same.

WhatsApp and Facebook had subsequently challenged before the single judge CCI’s March 2021 order directing a probe against them, saying that the issue concerning its new policy was already pending consideration before the high court and the Supreme Court.

The single judge on April 22 last year, however, refused to interdict the investigation directed by the CCI.

The single judge had opined that although it would have been “prudent” for the CCI to await the outcome of petitions in the Supreme Court and the Delhi High Court against WhatsApp’s new privacy policy, not doing so would not make the regulator’s order “perverse” or “wanting of jurisdiction”.

The CCI had contended before the single judge that it was not examining the alleged violation of individuals’ privacy which was being looked into by the Supreme Court.

It had argued before the court that the new privacy policy of WhatsApp would lead to excessive data collection and “stalking” of consumers for targeted advertising to bring in more users and is, therefore, an alleged abuse of dominant position.