Delhi High Court hears Facebook plea against probe by CCI into new WhatsApp Privacy policy [LIVE UPDATES]

Last week, the Competition Commission of India (CCI) called for an investigation into allegations of abuse of dominance levelled against WhatsApp in relation to its privacy policy.Facebook has challenged the CCI decision before the Delhi High Court.This is not a competition issue. Recently, WhatsApp came up with an updated policy. It doens't change the privacy policy. They had given an opt-out for pre-2016 customers. Now it's only an amplification. CCI has jumped the gun and started proceedings: Salve.When Facebook bought it over, WhatsApp started a Policy in 2016. The matter was challenged in the Surpreme Court. The Govt of India said they would have a proper framework.. privacy is a major issue in these matters: Salve.Privacy is a constitutional concept.. not for the CCI to decide.. Mr. Maninder Singh's son challenged the policy.. when CCI jumps the gun..: Salve.When the sectoral regulator is examining, CCI can't see the competitive aspect to get involved. This is the Airtel judgement. Privacy policy is challenged .. I'm rendering a free service.. you have a choice.. you can take whichever you like: Salve.What should be privacy policy can't change from one service provider to another.. neither you say that it is completely contractual: Salve.Salve says it is to quash the privacy policy..What is the prayer in the petition?: Court.We clarified that option of opt out continues. Post 2016 there is no opt out : Salve.Salve reads the key updates in the privacy policy of WhatsApp. Salve reads the CCI order..The matter is pending before the Supreme Court.. this is a headline-grabbing endeavour (by CCI): Salve.Govt has to decide contour of privacy: Salve.WhatsApp cannot see. User conversation is protected by end to end encryption: Salve.Salve continues to read CCI order. This is all completely different system: Salve as he explains that the data sharing is for business accounts..It's very strange that said Facebook was the parent company ..they said Facebook is evading. Facebook policy is not in question: Salve.Where is the change in the policy? : Salve.This is called raising a ghost and now you want to slay it : Salve.Once this was told to them, look at what he says .. CCI goes into relevant market, Harshita Chawla case.. : Salve.He wants to open up 2016. Update doesn't say we are altering anything.. I'm using WhatsApp. What I communicate, WhatsApp can't read. But that I'm a user, it's my phone number, that I send 100s of messages..it is data generated within the system. That is what is shared: Salve.We have drifted very far away from what is a competition matter. Personal data and privacy is primarily a constitutional virtue. I'm using data available in my own system. To prevent me from doing so, there has to be some law: Salve.This is what is being examined. We are a highly regulated sector. It would either be TRAI or the government: Salve.Opt out continues for those who opted out in 2016. There is no problem : Salve.Nothing: Salve.What is new in the policy?: Court .This is my own data. If a person has to register, it has to give me a phone number.. you may have to improve your service. It is commercial use of data created on my system. I'm not asking customer to give me his number. The customer is only giving me his phone number: Salve.Petitioners in Chaitanya and Seema are intervenors in Surpreme Court.. : Salve.2021 update and not just 2016 has been challenged in several fora including this court: Salve.It's getting problematic. New regulations have been put in place.. they are in law & order aspect. we are talking to govt.. they may want us to read messages: Salve.WhatsApp started as a free service. But it has huge commerical potential: Salve.Please see what we have put on record: Salve.Impugned order directs investigation to be made into the privacy policy: Salve.Salve informs the Court about the matters pending in relation to the 2021 policy..Applications on the 2021 policy are pending..This is the matter of which the government is seized : Salve.Yes, and sectoral .. : Salve.You're trying to say that policy has not changed and this is a matter that is sub judice before the High Court and Supreme Court: Court.We do not retain messages. They are deleted from our servers after they are delivered: Salve.When this order is pointed out, they say it only for opt out: Salve.Salve said that issue with respect to the 2016 policy was brushed aside by the CCI. Salve reads this order dismissing inquiry against 2016 policy..Subject matter is before the Supreme Court where originally 2016 policy was in question ..it is also in Delhi High Court : Rohatgi.WhatsApp policy is not my policy. I cannot be added as a party.. to be embroiled in litigation. It is nobody's case that it is a joint policy: Rohatgi.Issued is issued to challenge to 2021. When challenge is before teh constitutional bench, can a statutory authority say we will start suo motu action ..when when two constitutional authorities are looking into it. I would say this is abuse : Rohatgi.Rohatgi refers to Airtel judgment. My case is on far better footing.. the exercise of jurisdiction by CCI is wrong and barred and will amount to perversity: Rohatgi.Rohatgi reads the CCI order..How many people are beneficiaries? Ultimately it will be lakhs: Rohatgi.There is WhatsApp business. It doesn't store any message sent by me to Mr Salve. It is erased forthwith. If I want to purchase ticket with going to MMT or travel agent, I can access WhatsApp and get a ticket thru Air India..in that eventuality, it has to be stored: Rohatgi.What do you mean Facebook is direct beneficiary? Millions will be beneficiaries: Rohatgi.Start of inquiry has serious consequences: Rohatgi.What I do on my platform is not a subject matter : Rohatgi.If people were bothered.. in India people file all sorts of cases. Somebody would have come to CCI : Rohatgi.The DG is told to investigate completely speculative things : Rohatgi.There is an abuse of suo motu: Rohatgi.When matter is already pending in every court, can suo motu be exercised that too against both WhatsApp and Facebook.. there is comity of courts. CCI must respect HC and SC : Rohatgi.It is ex facie absurd : Lekhi.We are dealing with privacy policy, the matter is not of privacy but access to data. Competition is going to deal with meta data : Lekhi.Who is calling whom, thru which device, when and for what purpose .. customer profiling and consumer preference will be monetize and lead to network effect. It is open for both WhatsApp and Facebook to dominate and abuse : Lekhi.There are 2-3 contours.. whether data can be shared by WhatsApp with anyone at all. It violates my privacy or not : Court .It's not a question of privacy.. it then goes to Part III : Lekhi.Text of Part III is in the realm of constitutional court.. sectoral regulator is wrong being called inferior court : Lekhi.First issue is whether data can be shared at all : Court .Whether access to data would lead to abuse of dominant position: Lekhi.Service provider will always have the data.. whether this information which is automatically stored can be used by them without my consent..second is why just Facebook and not other third parties. That is an issue of competition : Court.Third is can you share or not share without my consent. This goes back to privacy. They are saying whether this data is protected or not is pending before court and thus can at this point CCI also come into picture: Court.It is actually one question.. data can have privacy or competition dimension : Lekhi.On privacy aspect, sharing of data can infringe privacy.. a constitutional court will decide. Apart from autonomy, data can be meta data : Lekhi.There is issue of monetization of information.. : Lekhi.That is also a matter of privacy : Court.The submissions have been framed to suggest that CCI is not following comity of institutions. The order is not being read in totality: Lekhi.Issue is completely competition based. Understanding consumer behaviour and preferences. It facilitates targeted advertising: Lekhi.Facebook owns Whatsapp. Whether WhatsApp is going to share with Singal or Telegram? No because they are competing apps : Lekhi.As there will be more advertising, there will be more users.. number will increase on both sides : Lekhi.There will be a barrier to market because of abuse of dominant position. This is what CCI is dealing with. We are at the stage of sec 26(1): Lekhi.The direction is tentative: Lekhi.The law does not contemplate any remedy at this stage. It is only when report is submitted that scrutiny by CCI begins. At this stage, WhatsApp, Facebook are not to be heard : Lekhi.They are intending to represent their case substituting the DG investigation. CCI will come into picture after report comes ...merits of controversy can't be part of writ petition at the time when only direction is issued and there is no report : Lekhi.There is nothing firm or decisive at this stage : Lekhi.Bharti talks about clash of sectoral regulators : Lekhi.There is no clash of sectoral regulators here Surpreme Court is seized of privacy issue and framing of guidelines under IT Act. It has nothing to do with competition: Lekhi.CCI is the sole sectoral regulator for this matter..it is inept to call Surpreme Court a sectoral regulator: Lekhi.Merely because SC is seized of privacy issues it doesn't mean that it is dealing with competition issues: Lekhi.What CCI is dealing with is access to data in terms of consumer and customer profiling : Lekhi.WhatsApp policy is not taking about sharing of data with all companies and not just Facebook: Lekhi.Facebook got Instagram. It got to know about WhatsApp, it bought WhatsApp. When critical mass of users reached, they came up with the policy to wipe out competition: Lekhi.That is not the investigation that you are ordering : Court.Your order doesn't reflect that they are going to look into dominant position abuse. This is in relation to the consumer: Court.CCI presumed that dimension of competition would be understood: Lekhi.Order suggests that you are dealing with privacy: Court.Confusion is because privacy is called privacy policy.. we can't look at the nominal expression policy: Lekhi.Lekhi reads the CCI order..They are dealing with excessive data collection, use and sharing of it, in anti competitive context: Lekhi.Commission is not concerned with privacy which is before Surpreme Court: Lekhi."Use, sharing, excessive": Lekhi.Lekhi reads the CCI order..Lekhi says analysis of data will give more information about a user than physical stalking..Facebook comes into picture because of the privacy policy which is on data collection: Lekhi.This is the strain that runs across the order: Lekhi.Lekhi says CCI has formed a tentative opinion on exclusionary effect of policy, barriers to market entry, leveraging..Whether it is discriminatory is in the domain of the Commission. Surpreme Court will not deal with competition facet. It will deal with with privacy facet : Lekhi.Data and data is meta data which would be utilised and impair competition. It would be borne out of investigation. Is this the stage? , Petition is misconceived. It is invoking a right that doens't exist : Lekhi.There is no question of any jurisdiction error. There is no perversity. Just because English is wrong, doesn't mean the order is wrong.. English is not our native language.. it is the brown man's burden: Lekhi.Facebook can't wash its hands off. It is necessary and is a beneficiary: Lekhi.Can order be worse off because Facebook is mentioned? It is for good cause : Lekhi.Can a hearing be given when law doesn't provide for it? : Lekhi.Interference is an exception and not a norm : Lekhi.Inquiry is not about meta data or sharing with Singal.. not about Mr Rohatgi being stalked..it is everything to do with my customer. Orders can't be sustained on flights of fantasy : Salve.Salve reads CCI order..Salve argues that the issue was with respect to opt out..My friend was throwing meta data ...meta data in my system doesn't belong to the user : Salve as he points out that CCI order talks about personalised data of user..Salve reads CCI order, emphasises issue is with respect to "personal data" of users, and sharing of personalised data..This is exactly what is before the Supreme Court: Salve.Please mark the words "protection of personalised data" : Salve.If it is my data, I may want to monetise it myself. This is exactly the sectoral issue : Salve.Is the issue in suo motu not the same that is before higher courts. Inferior authority cannot jump in : Rohatgi.Whether I called Mr Salve in the morning is also part of privacy. Whether I called for Bombay or Delhi : Rohatgi.CCI proceedings must be kept in abeyance: Rohatgi.If message can't be stored or shown.. these are all aspects of policy: Rohatgi.He's saying whether this data at all can be stored by you (Facebook) : Court.How are we splitting hair? Where are these compartments coming from : Rohatgi.Every telecom operator knows call origination, termination...how will I not know: Salve You explain it in inquiry : Court Inquiry is not on that. My ld Friend will not be there to steer the inquiry: Salve.Everybody does it. Every service provider has access to this information: Salve.Senior Advocate Amit Sibal : The jurisdictional fact of inquiry is that privacy policy is unfair to user. Is that pending before the Surpreme Court and High court..Round two litigation before Surpreme Court is exactly on this ground: Sibal.The jurisdictional fact is pending: Sibal.Mr Salve has said so : Court.This is suo motu case based on media reports, they declined to hear us : Sibal.You can't investigate whether there is prima facie opinion. You make manifest errors.. where is the 26(1) prima facie opinion? : Sibal.Even the original order in 2016 policy was challenged before NCLAT and is pending: Sibal.Reliance is not on personal data. It is a point of dispair. Order has to be seen as a whole : Lekhi.Question of Surpreme Court is irrelevant: Lekhi.Arguments heard. Order reserved : Court

Delhi High Court hears Facebook plea against probe by CCI into new WhatsApp Privacy policy [LIVE UPDATES]

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