WhatsApp and Facebook on Monday urged the Delhi High Court to shelve a notice from the Competition Commission of India (CCI), which requires them to provide certain information about its order of an investigation into the instant messaging app’s new privacy policy.
The vacation bench composed of judges Anup Jairam Bhambhani and Jasmeet Singh said it would pass a request order.
At the hearing, the judge said that because it was sitting on the vacation bench, it did not want to delve into the substance of the matter even if the main petitions are pending on the bench led by the Chief Justice. “We will pass an order. The matter will be listed on July 9th (the date of the main petition has been fixed),” the bench said.
The case involved an appeal by Facebook and WhatsApp against a single judge’s order that rejected their request for an investigation ordered by CCI’s new privacy policy for instant messaging applications.
The High Court issued a notice on the appeal earlier and asked the center to respond.
In the new applications filed in the pending appeal, Facebook and WhatsApp sought to retain CCI’s June 4 notice, asking them to provide certain information for the main purpose of inquiry conducted by it.
Harish Salve, a senior advocate on behalf of WhatsApp, said the problem is that they received a fresh notice on June 4, and the last reply date was yesterday, which is June 21.
He said that the privacy policy has been under-challenged in the Supreme Court and Delhi High Court through a number of petitions, and even the government is investigating.
Senior lawyer Mukul Rohatgi, who appeared in court for Facebook, said that the issue here is of propriety and that it is incorrect as the country’s Supreme Court, which means that the Supreme Court is investigating the matter.
Why did they wait till the evening of June 4 to issue the notice? They could have done it earlier, he said.
The Additional Solicitor General Aman Lekhi, representing CCI, objected to the request that the provision of information during the investigation phase would not result in CCI issuing any order. The notice was issued based on an investigation not set aside by the High Court, and this is not the first notice issued to them.
ASG Balbir Singh, who also appeared in court for CCI, said that because of the statutory orders against Facebook and WhatsApp, they should not use the orders of the High Court and stated that they would not provide the information required by CCI and that the information should not be shelved at this stage.
When the court asked the CCI what the urgency of issuing the notice was, Lekhi said that this issue is not urgent, but the matter itself requires a long process. He said that until the Director-General submits a report to CCI, no urgent action will be taken against them. The High Court issued a notice on May 6 and sought a response from CCI on the appeals filed by Facebook and WhatsApp.
The single judge on April 22 said that although the CCI is prudent awaiting the results of the Supreme Court and Delhi High Court’s petition against WhatsApp’s new privacy policy if it does not do so, the regulator will not issue an order i.e perverse or wanting of jurisdiction. The court had stated that it considers Facebook and WhatsApp’s requests to interdict CCI-directed investigations to be of no value.
CCI argued before a single judge that it did not review the alleged violations of personal privacy under investigation by the Supreme Court.
It argued in court that WhatsApp’s new privacy policy will lead to excessive data collection and “tracking” of consumers for targeted advertising to attract more users, thus allegedly abusing its dominant position.
There is no question of jurisdictional errors, it argued that Facebook and WhatsApp’s pleas to challenge its decision were “incompetent and misunderstood.”
WhatsApp and Facebook challenged the CCI’s March 24 order which requested an investigation into the new privacy policy. CCI also told the court that only after an investigation can it be determined whether the data collected by WhatsApp and shared with Facebook constitutes anti-competitive behavior or abuse of dominant position.
It also contended that the collected data, including the location of the individual, the type of device they use, their Internet service provider, and the people they talk to, will lead to the creation of customer profiles and preferences, which will be in the following ways to monetize targeted advertising, all of which are equivalent to stalking.
The two social media platforms argued that when the Supreme Court and the Delhi High Court are studying privacy policy, CCI should not be jumped the gun and intervened in this issue.
They also stated that the CCI’s decision abused the committee’s suo-motu jurisdiction.
They claimed that the CCI, in this case, has been drifted away from the competition and is investigating privacy issues, which have been investigated by the Supreme Court and the Delhi High Court.
In January of this year, CCI decided to investigate WhatsApp’s new privacy policy based on relevant news reports.
