WhatsApp Moves SC Over Delhi HC Order To Continue CCI Probe

Meta-owned messaging platform WhatsApp has moved the Supreme Court after the Delhi High Court issued an order allowing the Competition Commission of India (CCI) to continue its probe into the platform.

According to the Supreme Court’s website, the order would be tentatively heard on October 14 (Friday).

In May 2021, WhatsApp moved a single-judge bench in the Delhi High Court for a stay on the probe. However, the bench ruled in favour of the CCI. Following this, the instant messaging platform moved a two-judge bench of the Delhi High Court. The two-judge bench also ruled in favour of the CCI probe in August, declining to intervene any further.

While dismissing the pleas made by WhatsApp and its parent Meta, the Delhi High Court noted that the messaging platform’s privacy policy leaves the users in a ‘take it or leave it’ situation. It is prudent to mention here that after WhatsApp introduced its new privacy policy, it gave users 30 days to accept it or else lose their accounts.

WhatsApp wants CCI to stop its probe till the data privacy bill is implemented, as was made evident when it tracked back on limiting user functionality in May 2021.

WhatsApp has also repeatedly questioned CCI’s jurisdiction and methods used in the probe. At a hearing in July, Facebook argued that CCI did not even have prima facie material to begin a probe into the case, adding that CCI could not investigate the platform in a ‘creeping fashion’.

A Brief Refresher On The Probe

The case dates back to March 2021, when the Indian antitrust watchdog ordered a probe into the privacy policy of the US-based instant messaging service, introduced in January 2021. 

The CCI alleged that with the privacy policy, WhatsApp intended to abuse its market dominance in the country. 

WhatsApp’s 2021 privacy policy update included norms under which the instant messaging platform would be able to share more of the non-personally identifiable information with its parent company, Meta. This included data like transaction details, IP addresses, mobile device information and so on.

CCI believes that this would give Meta group companies an advantage over other companies, making the privacy policy anti-competition.

MeitY also filed an affidavit in the Delhi High Court in April 2021 challenging the privacy policy from a data privacy perspective. The ministry noted that WhatsApp’s privacy policy violated the IT Rules, 2011 on five counts. The case is currently pending in the apex court.

However, Meta and WhatsApp cite the clean chit they were given in 2016 by the CCI and argue that the current actions of the watchdog went against its own order.

The 2016 probe was initiated by CCI after Meta, then named Facebook, changed the instant messaging platform’s privacy policy stating that some of the user data may be shared with the parent company for advertisement purposes. WhatsApp was acquired by Facebook in 2014 for $16 Bn.

In 2017, CCI closed the case stating that there was no prima facie evidence of any wrongdoing on the part of Meta or WhatsApp. CCI has since stated that the 2016 clean chit was from a different perspective and was given under different circumstances.

India is the largest market in the world for WhatsApp, where it has around 400 Mn users, per third-party data sources.