WhatsApp moves SC against HC order on CCI’s privacy probe

In 2021, the Competition Commission of India (CCI) ordered a probe into the then-new privacy policy of WhatsApp for alleged abuse of market dominance. WhatsApp moved a single-judge bench in the Delhi High Court seeking a stay. The court ruled in favour of CCI. The platform appealed against the order before a two-judge bench of the Delhi High Court, which also ruled in favour of CCI, in August, and declined to intervene in the matter.

Lawyers aware of the development told ET that WhatsApp wants CCI to stop its probe until the data privacy bill being prepared by the ministry of electronics and information technology (MeitY), which would cover the issues raised by CCI, is implemented.

WhatsApp didn’t respond to queries.

“There is also an argument about the jurisdiction of CCI,” said a lawyer with knowledge of the matter. “MeitY has already raised similar questions to that of CCI over WhatsApp’s privacy policy and hence WhatsApp is arguing that MeitY should be the regulatory agency probing the matter once the data privacy bill is introduced.”

Previous complaint

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The company has also cited a previous CCI order in a similar matter regarding the privacy policy of 2016 in which WhatsApp was exonerated and said the action initiated by the watchdog went against its own order.

In 2016, after Facebook, since renamed Meta, acquired WhatsApp, the instant messaging platform updated its privacy policy, informing users that their data may be shared with the parent for advertisement purposes. In 2017, complainant Vinod Kumar Gupta moved the CCI against WhatsApp regarding the privacy policy. However, CCI closed the complaint on June 1, 2017, saying there was no prima facie evidence of wrongdoing.

Subsequently, in 2021, when WhatsApp unveiled a new privacy policy, CCI took suo-moto cognisance and asked its director general (DG), investigations, to probe the matter and ascertain if the platform had violated antitrust provisions. This new privacy policy has already been challenged in the Supreme Court from a data privacy standpoint and the case is currently pending.

CCI has taken the stance that there was no regulatory overlap between itself and MeitY since the antitrust regulator is probing the issue from the perspective of competition. CCI believes that the clean chit given to WhatsApp in 2016 involved different circumstances.