WhatsApp Privacy Policy Still In Place, Probe Should Continue: CCI

The Competition Commission of India (CCI) and social media platforms WhatsApp and Facebook continued their arguments before the Delhi High Court (HC) on Monday over the contentious 2021 WhatsApp privacy update.

In its submission, the CCI said that its probe into the two social media platforms should be allowed to continue, adding that the controversial privacy policy update is ‘still in place and functional’.

The bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad reserved the order on the matter after hearing both the concerned parties. 

Arguing for the CCI, Additional Solicitor General (ASG) N Venkataraman was quoted by PTI as saying that the probe into the privacy policy should not be deferred to await the decision of the apex court. 

“Judicial process cannot be used to thwart investigation…(pendency of privacy issue before Supreme Court) cannot automatically obviate competition law concerns. There is no overlap in facts. We should be allowed to investigate,” said Venkataraman. 

He added that WhatsApp is still resorting to a ‘pop up’ to seek the consent of users who are yet to accept the updated policy. 

The competition watchdog also noted that the current investigation into the 2021 privacy policy update has no overlap with a similar case of infringement of user privacy pending before the Supreme Court. 

ASG Venkataraman called for examining the matter contending that there could still be violations related to competition law as many users have opted for the policy update. 

He said that the probe into the 2021 WhatsApp policy update would have no bearing on the pending case in the apex court as the current case relates to the abuse of dominant position by a market player. The probe cannot not be stalled unless there is a ‘lack of jurisdiction or malafides or arbitrariness’, the CCI added.

During the course of the hearing, the CCI also called for roping in Facebook as a party to the probe. Arguing for the competition watchdog, ASG Balbir Singh said that Facebook is the holding company of WhatsApp, and added that it can ‘potentially exploit the data being shared’.

In response, WhatsApp’s counsel Tejas Karia called for deferring the CCI probe citing the case before the Supreme Court. He also claimed that ‘status quo’ is being maintained for users who have not opted for the contentious policy update. 

On July 21, the competition watchdog told the Delhi HC that it was not able to ‘move an inch’ in the probe launched against the instant messaging platform’s 2021 updated privacy policy due to time granted by the court to both entities for filing replies in each case. The CCI had further claimed that there was ‘virtually a stay’ on the investigation.

The saga began in March last year after the CCI launched a probe into WhatsApp after it came to light that the messaging platform was imposing its new policy updates on customers. The policy update allowed WhatsApp to leverage ‘business conversations’ users had with business accounts on the app for targeted advertising.

Subsequently, both WhatsApp and Facebook challenged the probe before a single judge bench which rejected the appeal filed by the social media giants.