ICC informs Delhi High Court

The Competition Commission of India (ICC) informed the Delhi High Court on Monday that its jurisdiction to investigate Whatsapp’s new privacy policy is not terminated as the policy in question is not withdrawn or suspended by any judicial body.

A dividing bench made up of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad order reserved in appeals filed by WhatsApp and its parent company Meta against a single order refusing to interfere with CCI’s investigation into WhatsApp’s new privacy policy.

Additional Solicitor General N. Venkatraman appearing for CCI argued that its investigation into WhatsApp’s new privacy policy cannot be blocked by legal proceedings.

“When there is no legal infirmity, the investigation must continue”, ASG submitted further.

ASG Venkatraman further informed the Court that there is no overlap of its investigation under competition law with the issue of privacy violation pending a decision before the Supreme Court and that the TCC exercised caution correctly as it has jurisdiction to investigate the privacy policy. .

On the other hand, refuting the said observations, lawyer Tejas Karia appearing for WhatsApp argued that, as a matter of judicial discipline, if the highest authority in the country (Supreme Court) examines the validity of its privacy policy, it will only be open to no power to initiate an investigation.

Karia also argued that the ICC can conduct an investigation and is not excluded in terms of jurisdiction, but the authority must wait for the findings of the Supreme Court.

Karia further informed the Court that WhatsApp had obtained informed consent when rolling out the privacy policy and that users had full freedom to accept or decline it.

He also argued that no user data is shared with any other person while sending messages and that even in the process of transmission the messages are end-to-end encrypted and he does not there is no question of sharing the data.

Lead attorney Mukul Rohatgi appearing for Meta argued that mere ownership (Meta’s ownership of Whatsapp) cannot be a reason for CCI to involve him in its investigation in relation to the issue of WhatsApp’s privacy policy. WhatsApp.

He also argued that there was no prima facie case for the ICC to open an investigation on the basis that Facebook abused its dominant position.

India’s Competition Commission had ordered an investigation into WhatsApp’s new privacy policy after making a prima facie observation that it violated the Competition Act 2000.

In sending notices to WhatsApp and its parent company, CCI had observed that the terms of the privacy policy on sharing personalized data with Facebook companies were “neither fully transparent nor based on the specific and voluntary consent of users. “.

The TCC had made a prima facie finding that the policy was an abuse of dominance resulting in a violation of Section 4 of the Competition Act.

The antitrust regulator called the terms of the privacy policy “take it or leave it” terms set by a dominant messaging platform, without providing much information to users, and observed that the policy seemed at first glance “unfair and unreasonable”.

The ICC Bench consisting of Ashok Kumar Gupta (Chairman), Sangeeta Verma (Member) and Bhagwant Singh Bishnoi (Member) observed that “a thorough and detailed investigation is required to determine the extent, scope and impact of data sharing through involuntary user consent”.

Accordingly, the Commission ordered the Director General (“DG”) to initiate an investigation into the matter under the provisions of Article 26(1) of the Act. The Commission also ordered the DG to complete the investigation and submit the investigation report within 60 days of receiving this order.

Case Title: WhatsApp LLC v. ICC, Facebook c. ICC

Thelma J. Longworth