Exclusive: Facebook, WhatsApp Challenge CCI Probe Order In Delhi High Court 

WhatsApp and Facebook have petitioned the Delhi High Court to dismiss the Competition Commission Of India order that had called for an investigation into WhatsApp’s privacy policy update. The competition watchdog said on March 24 that the probe had to be completed in 60 days.

The petitions, seen and reviewed by Inc42, although filed separately by Facebook and WhatsApp, are broadly similar. Both companies contend that cases regarding the privacy policy update are already being heard in the Supreme Court and the CCI should be restrained from any probe until those cases are resolved. 

Interestingly, Facebook claimed that it shouldn’t be investigated since its social media business and the WhatsApp messaging platform are different entities. But at the same time, it also asserted that the competition watchdog should present evidence of WhatsApp’s dominance before being allowed to investigate.

“Today’s consumers value non-price parameters of services viz. quality, customer service, innovation, etc. as equally if not more important as price. The competitors in the market also compete on the basis of such non-price parameters. Reduction in consumer data protection and loss of control over their personalised data by the users can be taken as reduction in quality under the antitrust law,” said the CCI order in late March.

WhatsApp’s Privacy Policy Sees Multiple Challenges 

In March, India’s IT ministry filed a counter-affidavit in the Delhi High Court, looking to restrain WhatsApp from rolling out its controversial privacy policy update. The IT ministry’s response was in relation to a petition seeking to direct the central government to force WhatsApp to either roll back its new privacy policy or give users an opt out option. 

In the lawsuit ‘Dr Seema Singh v. Union Of India’, the court had last month sought responses from the central government and had listed March 19, 2021, as the next date of hearing. 

In its counter-affidavit, the government has contended that pending the passing of the Personal Data Protection Bill, 2019, the Information Technology Act, 2000 and the rules made under it, constitute the data protection regime in the country, which WhatsApp would be violating with its new policy.

The government has detailed various counts of violation of the IT Rules, 2011, by WhatsApp and claimed that the new privacy policy fails to specify the types of sensitive personal data (SPD) being collected and has used very generic terms to describe the kinds of data collected. The government has argued that the privacy policy contains no distinction between personal data or sensitive personal data which is being collected. 

The new privacy policy, which was announced by the Facebook-owned company in January, doesn’t change anything for users’ personal chats, which will remain end-to-end encrypted. What will change is how WhatsApp shares data from users’ chats with business accounts, with Facebook’s group companies.