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WhatsApp Once Again Seeks Delhi HC Intervention Over CCI’s Probe Into Privacy Policy Updates

WhatsApp Once Again Seeks Delhi HC Intervention Over CCI’s Probe Into Privacy Policy Updates

CCI has maintained that the policy would enable WhatsApp to abuse its dominant position in India

In March 2021, the CCI ordered an investigation into WhatsApp’s privacy policy update which the regulator said was ‘exclusionary’ and ‘exploitative’.  

The latest policy will allow WhatsApp to share business chats’ metadata with Facebook to boost its B2B play

Social media giants Facebook and WhatsApp moved the Delhi High Court on June 21 seeking to stay the Competition Commission of India (CCI’s) investigation into WhatsApp’s new privacy policy updates that were rolled out in January 2021.

A Delhi HC bench consisting of Justices Anup Jairam Bhambhani and Jasmeet Singh said it will pass an order on the social media company’s application.

Facebook and WhatsApp appeals in the Delhi HC  are currently pending before another bench headed by the Chief Justice, hence the examining bench on June 21 did not pass an interim order. The matter will be listed on July 9.

The Delhi HC had earlier issued notices on the CCI hearing appeal submitted by Facebook and WhatsApp, while instructing the Centre to respond to the appeal.

In March 2021, the competition regulator ordered an investigation into WhatsApp’s privacy policy update.  

Following this development, CCI has issued a notice to Facebook and WhatsApp on June 4 ordering them to furnish certain information to aid with the investigation. Facebook and WhatsApp then reportedly moved Delhi HC seeking to stay the process. 

The competition watchdog had originally said in March that it plans to complete the probe within 60 days. However, Facebook and WhatsApp had already appealed the decision in court. 

During that appeal hearing in Delhi HC on April 13, CCI told the court that WhatsApp’s controversial policy update could lead to excessive data collection and stalking of its users. In response, Harish Salve, representing WhatsApp in the latest hearing, added that the matter is already pending before the Supreme Court and the investigation taken up by CCI is just a “headline-grabbing endeavour”.

While ordering an investigation into the messaging app’s new privacy update in March, the CCI did not mince any words stating that consumers will end up losing control over their data with WhatsApp’s new data sharing policy with Facebook.

“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,” says the order.

While rolling out the new privacy policy update worldwide in March, WhatsApp said that it would share more user data with parent company Facebook, particularly related to business transactions on WhatsApp, other activity as well as device-level information from users. The move is tied to WhatsApp’s bigger ecommerce play as well as its super app ambitions in India.

WhatsApp told users that those who do not accept the amended privacy policy, within February 08, 2021, may no longer be able to access WhatsApp chats or groups. However, the company decided to delay this process till May 15, 2021, after massive backlash from users. It has decided to go ahead with the policy nonetheless, despite protests from civil rights groups and the central government.

Senior advocate Aman Lekhi, representing the CCI, added during the hearing in Delhi HC that the current matter is not about privacy of users, but the data WhatsApp would have access to once these privacy policies come into play, as per a report in Bar And Bench. Lekhi noted that WhatsApp, which has about 530 Mn users in India, would also have access to data such as “who is calling whom, through which device, when and for what purpose, customer profiling and consumer preference will be monetised for targeted advertising, etc,” which amounts to “stalking”.