WhatsApp, Facebook’s Appeals Against Competition Watchdog Probe Rejected

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The Delhi High Court dismissed the appeals of WhatsApp and Facebook today against an order rejecting their challenge to a probe ordered by the Competition Commission of India (CCI) into the instant messaging platform’s updated privacy policy of 2021.
A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said the single judge’s order was well-reasoned and the appeals are devoid of merits.

In April last year, a single judge of the high court had refused to interdict the investigation directed by the CCI on the petitions moved by WhatsApp LLC and Facebook Inc. – now Meta platforms.

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 had argued before the division bench of the court that the CCI cannot probe a policy that has now been kept in abeyance to await the fate of the Data Protection Bill as well as the decision of the Supreme Court and the high court on issues concerning the legality of the policy.

Facebook had argued that there was no prima facie material in the case against it and the CCI cannot investigate it in a “creeping fashion”.

The CCI, however, had contended that its investigation into the new privacy policy should be allowed to proceed as the policy has not been withdrawn and there is no scope for the inquiry to overlap with the Supreme Court proceedings, which pertain to issues of alleged infringement of user privacy.

The anti-trust regulator had said its probe concerned WhatsApp’s anti-competitive sharing of user data with Facebook and not issues concerning the privacy law and that a judicial process cannot be used to thwart the investigation.

It had also defended the probe against Facebook as well as in connection with WhatsApp’s privacy policy, saying the former is the holding company of the messaging platform and can “potentially exploit the data being shared”.

Before the single judge, WhatsApp and Facebook had challenged the CCI’s March 2021 order directing a probe against them.

Dismissing the petitions, the single judge had opined that although it would have been “prudent” for the CCI to await the outcome of the 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”.

On January 3, while dealing with the appeals against the single-judge order, a bench headed by then Chief Justice DN Patel had 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 the inquiry conducted by it.

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