The Delhi High Court has quashed a petition by instant messaging app WhatsApp and its parent Facebook which challenged the Competition Commission of India ()’s investigation against WhatsApp’s new privacy policy.
The policy which has been deferred earlier and will come into force from May onwards is only for users of business services and Whatsapp and does not compromise with its end to end encryption.
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Justice Navin Chawla who was hearing the matter said that CCI order of investigation could not be quashed merely because the Commission did not await the outcome of the pending cases before the Supreme Court and High Court.
The Court also said that WhatsApp, Facebook mounted an independent challenge to the Commission’s order without moving an application before the Supreme Court and the High Court for clarification, and the same was not maintainable. Facebook’s stand that an investigation could have been ordered against it was also rejected, according to litigation portal Bar and Bench.
While Additional Solicitor General Aman Lekhi appeared on behalf of CCI, WhatsApp and Facebook were represented by senior Advocates Harish Salve, Mukul Rohatgi and Amit Sibal.
Last week, the Court has reserved the order in the hearing where Whatsapp and Facebook argued that the CCI jumped the gun by ordering an investigation into the Whatsapp new privacy policy and is overreaching its jurisdiction since the issue of privacy is already being dealt in a matter being heard by the Supreme Court. The CCI however, argued that it was looking into the competition aspect and not the alleged violation of individuals’ privacy. It also told the court that whether the data collection by WhatsApp and sharing it with Facebook would amount to an anti-competitive practice or abuse of dominant position can be determined only after the investigation.
India’s competition regulator on March 24 had ordered a probe after it found that the messaging platform had violated the provisions of the competition act on abuse of dominance in the garb of policy update. The data-sharing policy seemed exploitative and could have exclusionary effects which have the potential to undermine the competitive process and create further barriers to market entry, the CCI had said in its order.
WhatsApp had deferred the policy update which was initially planned in February after an outrage by users who shifted to rival platforms. India has the largest market for WhatsApp with over 400 million subscribers however the company has maintained that privacy update which is for users of business services on its platform doesn’t compromise its end to end encryption.
