"Will Not Enforce Privacy Policy Till Data Protection Bill Comes Out": WhatsApp Tells Delhi High Court

WhatsApp has informed the Delhi High Court on Friday that it's privacy policy will not be enforced till the time the Data Protection Bill comes out and that it will need to fit in the law in such a situation.

Senior Advocate Harish Salve appearing for Whatsapp submitted thus:

"We said we'll not enforce it untill the Data Protection Bill' will come out. In our case the government is the administrator of the Rules and we said okay we will wait till the Data Protection Bill'. The government will decide this. Then comes the competition dimensions of the practice. We said we will not do it."

Stating that the whole problem relates to the privacy policy, Salve submitted that if the Data Protection Bill is enforced at a later stage, Whatsapp will conform to the parliamentary law.

"If parliament allows me to do it, I'll do it. Otherwise I won't do it. It has become academic now. The commitment is that I'll not do anything if the parliamentary law comes. When such law is made, we need to fit in the law." He said.

On the other hand, Senior Advocate Mukul Rohatgi appearing on behalf of WhatsApp's parent company Facebook raised question on the Jurisdiciton of the Competition Commission of India to initiate a inquiry while exercising suo moto powers.

"Suo moto Jurisdiciton is to be sparingly exercised by a body like CCI. The Supreme Court is already examining the 2016 policy. There are three matters are pending in the Delhi High Court. The question is even assuming there is suo moto Jurisdiciton, can it be exercised when superior constitutional courts are examining the policy?"

Hearing the aforesaid submissions, the Court adjourned the hearing till July 30.

The division bench comprising of Chief Justice DN Patel and Justice Jyoti Singh was hearing an appeal by WhatsApp and its parent company Facebook Inc against a single bench order declining to interfere with CCI's investigation.

Earlier, a vacation bench comprising of Justice Anup J Bhambhani and Justice Jasmeet Singh had refused to stay the Competition Commission of India's (CCI) enquiry against WhatsApp's new privacy policy.

The court held that, "there is no doubt that the issuance of impugned notice dated 04.06.2021 by the DG is a step in furtherance of the investigation...., which investigation is subject matter of the challenge in the present LPA." 

Considering "substantial overlap, in fact near identity," between the prayers in both the applications, the court decided not to grant any stay on operation of the Jun 4 CCI notice.

During the previous course of hearing, Salve had submitted that the 2021 policy does not radically change the 2016 policy but only updates it.

Referring to the Personal Data Protection Bill which deals with the subject matter and is pending approval before the Parliament, he further pressed that the CCI is attempting to get into what the Government of India is already looking into.

On the other hand, Sr. Adv. Mukul Rohatgi for Facebook argued that there was overlapping of issues before the Supreme Court, the High Court and the CCI and stated that the CCI's examination of the matter was therefore impinging on constitutional propriety. 

He raised the question, "When the highest court of the land is examining the issue, can an administrative authority get into it?"

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.

The CCI 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".