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CCI probe due to ‘angst’ against WhatsApp policy, Meta tells Delhi HC
Meta, the parent of mobile communication service provider WhatsApp and social media networks Facebook and Instagram, was arguing to appeal against a single judge order of the HC that denied the companies’ requests to strike down the CCI investigation
Social media behemoth Meta on Friday told the Delhi high court that it was being made to face an investigation by the Competition Commission of India (CCI) because there was “angst” against its subsidiary WhatsApp’s decision to not back down from a controversial privacy policy, and that the parent company itself had nothing to do with the row.
Meta, the parent of mobile communication service provider WhatsApp and social media networks Facebook and Instagram, was arguing to appeal against a single judge order of the HC that denied the companies’ requests to strike down the CCI investigation. The parent company was previously known as Facebook.
“Facebook (now Meta) 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 without any material, much less a prima facie material that I have abused my dominant position. No doubt, I have a dominant position but I did not abuse that. This investigation is intruding into my business..,” said senior advocate Mukul Rohtagi to the bench of chief justice Satish Chandra Mishra and justice Subramonium Prasad.
Contending that the CCI cannot investigate Meta in a “creeping fashion” for WhatsApp’s privacy policy merely because it owns the instant messaging platform, Rohatgi said Meta had done nothing wrong.
On a specific query by chief justice Sharma, who remarked that there is a dominance of sharing of data, Rohtagi said: “The angst is that an opt-out option has not been provided to the Indian users. Meta has not done anything wrong that needs to be investigated”.
The senior counsel said that when the highest court of the country is already looking into the matter, the CCI had no business to order such an enquiry. He said that this a matter of “judicial discipline” that should be maintained to avoid contradicting results.
Senior advocate Harish Salve, who represented WhatsApp, also argued that the Supreme Court is already seized of the matters on the privacy policy and added that the challenge to the privacy policy is also pending in the Delhi high court.
The court after hearing the arguments, posted the matter for Monday when the CCI’s counsel would advance his submissions.
The issue relates to WhatsApp’s decision in January, 2021 to update its privacy policy to allow itself to share information (though not the exact content of messages) regarding a user’s interaction with a Business account with Meta group companies.
“As part of the Meta Companies, WhatsApp receives information from, and shares information with, the other Meta Companies. We may use the information we receive from them, and they may use the information we share with them, to help operate, provide, improve, understand, customize, support, and market our services and their offerings, including the Meta Company Products,” a part of the policy reads.
The company initially planned to implement it in February last year but pushed it back after a global backlash that saw an exodus of users to rival apps. The company then deferred the implementation to May 15, and in July, 2021, told the Delhi high court that the policy was on hold till India comes up with a data protection law.
The rule has been particularly controversial, and seen as a potential abuse of market dominance, since the privacy policy does not offer users to opt-out of the new policy, and they instead stand to lose access to the service if they do not abide by the terms.
The CCI initiated suo moto proceedings against the policy on March 24, 2021 and ordered an enquiry. This order was upheld on April 22, 2021 by a single judge.
The CCI had contended before the single judge that it was not examining the alleged violation of individuals’ privacy, which was being looked into by the Supreme Court in a separate proceeding.
It had argued before the court that the new privacy policy of WhatsApp would lead to excessive data collection and “stalking” of consumers for targeted advertising to bring in more users and is therefore an alleged abuse of dominant position.
This is the second major legal confrontation between WhatsApp and the authorities in India. The instant messaging service provider has sued the Union ministry of electronics and technology over its Information Technology rules 2021, which made it mandatory for the company to trace the original sender of any content – an obligation that it argued was technically impossible. The rule has since been stayed.
