A single judge bench of the Delhi High Court has rejected WhatsApp’s challenge to the investigation ordered by the Competition Commission of India (CCI) into WhatsApp’s new privacy policy last month. The competition watchdog had termed the new privacy policy as a ‘prima facie abuse of dominance’.
While dismissing the petition, Justice Navin Chawla observed that the court did not find any merits in the petition and hence refused to quash the investigation.
The decision comes through even as the High Court had recently stated that the probe is not consistent with a ‘abuse of dominance’ investigation. It had noted that the investigation appears to be more concerned with the privacy of users.
Arguments of the parties
There were 3 concerned parties, WhatsApp, represented by Sr. Adv. Harish Salve, Facebook, represented by Sr. Adv. Mukul Rohatgi, and ASG Aman Lekhi for the CCI.
WhatsApp argued that the CCI’s order was infringing upon an issue which does not fall in its jurisdiction. Rather, it is for the government to legislate on the issue of excessive data collection leading to anti-competitive implications.
Regarding privacy, it further argued that the policy is aimed to bring in more transparency with regard to how it collects user data and emphasized that WhatsApp can’t read conversations since the messages are still end-to-end encrypted.
Facebook on the other hand argued that it was nobody’s case that it is a join policy, and hence the CCI could not have passed any order against it. It also raised concerns about the comity of courts. Since the privacy policy matter is pending before the Delhi High Court itself and the Supreme Court of India, the CCI couldn’t adjudicate upon the issue being an inferior body.
Competition Commission of India
The Competition Commission on the other hand argued that the issue at hand did not pertain to privacy but to access to data, making it imperative for it to act. It further added that it will come into the picture only if the investigation suggests there there is in fact an abuse of dominant position by the petitioner.
“The question was whether in a data driven eco-system whether excessive data sharing or use would result in anti-competitive consequence….The analysis of the data collected by WhatsApp will give even more information about an individual than actual physical stalking.”
Explaining the abuse of dominance, it added,
“Using this data, they will eventually either buy-out the competition or make it irrelevant. Facebook comes into the picture because of the privacy policy through which data collection is happening.”
Cases pending in Judicial Forums
WhatsApp made the last major change to its privacy policy in 2016. A PIL challenging the policy is pending before the Hon’ble Supreme Court. Two cases are pending against the 2021 update in the Delhi High Court.
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