[Privacy Policy] CCI Can't Investigate Facebook Merely Because It Owns Whatsapp: Meta Tells Delhi High Court

Meta, formerly known as Facebook, on Friday told the Delhi High Court that the Competition Commission of India (CCI) cannot investigate it in a 'creeping fashion' in relation to the WhatsApp's new privacy policy.

The submissions were made before a division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad in the appeals filed by WhatsApp and its parent company Meta against a single bench order declining to interfere with CCI's investigation into WhatsApp's new privacy policy.

Senior Advocate Mukul Rohatgi appearing for Meta today argued that while the company owns Whatsapp, it cannot be reason for CCI to subject Meta to its investigation in connection with Whatsapp's privacy issue, thereby stating that the two platforms were different entities.

"Facebook acquired whatsapp in 2014. The ownership is common but roads are different, policies are different. As far as Facebook is concerned, the first notice to Whatsapp to make enquiry is the actual notice. But I have been roped in by making some reference in the order in writ petition without any material, much less a prima facie material that I've abused my dominant position," Rohatgi argued.

He added that there is no material with the CCI to start an investigation on the basis that Facebook has abused its dominant position.

"The fact that one owns the other….whatsapp would share something with me is no ground to commence investigation unless you have the material," Rohatgi further submitted.

He added "First thing is do you have any prima facie material with respect to Facebook? It was suo moto jurisdiction, there is no material otherwise to commence investigation."

Rohatgi further argued that as per judicial discipline, if the highest authority of the Country (Supreme Court) is examining the both new as well as old privacy policy of 2016 and 2021, then it will not be open for any authority to commence investigation as the same will lead to contrary results.

"They should hold on till some decision is out," he argued.

On the other hand, Senior Advocate Harish Salve appearing for Whatsapp argued that they were on the issue of jurisdiction while challenging the investigation of CCI.

After hearing the parties, the Court posted the matter for further hearing on Monday at 10:30 AM when counsel appearing for CCI is likely to commence submissions.

The Competition Commission of India had ordered a probe into the new privacy policy of WhatsApp after making a prima facie observation that it was violative of the Competition Act 2000.

Issuing notices to both WhatsApp and its parent company, CCI had observed that the privacy policy terms on sharing of personalised data with Facebook companies was "neither fully transparent nor based on specific, voluntary consent of users".

The CCI had made a prima facie observation that the policy was an abuse of dominant position resulting in violation of Section 4 of the Competition Act.

The anti-trust regulator termed the privacy policy terms "take-it-or-leave-it' terms set by a dominant messaging platform, without providing much information to the users, and observed that the policy prima facie appeared to be "unfair and unreasonable".

The CCI bench comprising Ashok Kumar Gupta(Chairperson), Sangeeta Verma(Member) and Bhagwant Singh Bishnoi(Member) observed that "a thorough and detailed investigation is required to ascertain the full extent, scope and impact of data sharing through involuntary consent of users".

Accordingly, the Commission directed the Director General ('DG') to cause an investigation to be made into the matter under the provisions of Section 26(1) of the Act. The Commission also directed the DG to complete the investigation and submit the investigation report within a period of 60days from the receipt of this order.

Case Title: Whatsapp LLC v. CCI, Facebook v. CCI