WhatsApp privacy policy still in force, unable to proceed against them despite court order: CCI to Delhi High Court

The Delhi High Court on Monday reserved orders in an appeal by social media giants Facebook and WhatsApp challenging the probe ordered by the Competition Commission of India (CCI) into the latter's privacy policy..A Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that it will pass a detailed order the issue. .During Monday's hearing, Additional Solicitor General (ASG) N Venkatraman appeared for the CCI and argued that WhatsApp’s 2021 privacy policy is still in place and that CCI has not been able to proceed against the company despite a previous High Court order. He stated that the single-judge had refused to stay the CCI probe into WhatsApp’s privacy policy in April 2021, despite which the Commission has not been able to proceed in the matter because of the appeal pending before the Division Bench.There is no stay on the single-judge’s order, the ASG pointed out.“We succeeded in April 2021. We have a judgment against them. There is no stay. We issued two probe notices. There are reasons strong enough to proceed. Still, 15 months later, we have not been able to proceed,” the ASG said.Venkatraman argued that though a statement was made that WhatsApp does not force anyone to share their data, even when a user denies such permission, a pop-up keeps appearing on the app till the time the user agrees to its conditions..On Friday, Senior Advocate Harish Salve had appeared for WhatsApp and had said that they were challenging CCI’s jurisdiction to probe the matter.Venkatraman, however, responded that CCI had exercised prudence correctly as it has the power to probe the privacy policy. .CCI also responded to Facebook's contention that it had nothing to do with WhatsApp's policy and therefore it cannot be investigated in the matter. The Commission argued that Facebook is WhatsApp's holding company and the latter is admitted to have shared its data with the former, owing to which Facebook will naturally be a subject of investigation. .In March 2021, the CCI called for an investigation into allegations of abuse of dominance levelled against WhatsApp in relation to its privacy policy. It had held,"...in a data driven ecosystem, the competition law needs to examine whether the excessive data collection and the extent to which such collected data is subsequently put to use or otherwise shared, have anti-competitive implications, which require anti-trust scrutiny......in digital markets, unreasonable data collection and sharing thereof, may grant competitive advantage to the dominant players and may result in exploitative as well as exclusionary effects, which is a subject matter of examination under competition law...".Summing up the privacy policy, the CCI stated,"Simply put, it appears that consent to sharing and integration of user data with other Facebook Companies for a range of purposes including marketing and advertising, has been made a precondition for availing WhatsApp service."The CCI further took note of the "lock-in" effect of using an app as widely used as WhatsApp, and opined that the scope of sharing information may extend beyond the categories expressly mentioned in the policy.On the use of personal data of the users, the order states,"...there appears to be no justifiable reason as to why users should not have any control or say over such cross-product processing of their data by way of voluntary consent, and not as a precondition for availing WhatsApp’s services."Such conduct, the CCI concluded appears to be in contravention of Section 4 of the Competition Act, which prohibits abuse of dominance..Breaking: CCI calls for DG investigation into WhatsApp Privacy Policy