No innocuous investigation: Meta on Whatsapp Privacy policy probe by CCI

CCI came to a prima facie conclusion in 2021 that the conduct of WhatsApp in “sharing of users’ personalised data with other Facebook companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent”, appears unfair to the users.

Meta and WhatsApp have separately approached the court against the CCI probe.

“The fact that WhatsApp shares something with me is not a ground for investigation. They are intruding in my business,” Senior Advocate Mukul Rohatgi, representing Meta, argued before the division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad.

Rohtagi said that the CCI probe actually pertained to the angst against WhatsApp’s decision to not provide an opt-out option to people.
“Stop WhatsApp. You cannot come in a creeping fashion [against me]. You [CCI] cannot creep into other fields, other parts which are not subject of the investigation. Keep them [WhatsApp and Meta] into two compartments,” he argued.

The senior counsel also argued that the case against WhatsApp’s privacy policy is pending before a constitutional bench of the Supreme Court and it was not open for CCI to start the investigation as there may be contradictions in the decision making.

Rohtagi also said that messages sent on WhatsApp are end-to-end encrypted and the question of sharing of certain information with others only existed in the context of WhatsApp Business, which is a separate application. “It is not an intrusive situation qua WhatsApp that everything is being shared. It is a very small portion of the policy in question that even for limited purpose, should you or should you not share,” he argued.

The court is currently hearing Meta and WhatsApp’s appeals against a single-bench order declining to interfere with the CCI investigation.

WhatsApp on July 09, 2021, had told the court that it will not be limiting the functionality of its messaging app in case a user does not consent to its latest privacy policy and will maintain the approach at least till the data protection bill comes into effect. The company also had said that it will not compel users in India to accept the policy.

A single-bench of the High Court on April 22, 2021, dismissed the petitions filed by WhatsApp and Facebook which have been arguing that the issue related to the privacy policy is already pending before the Supreme Court and High Court. The division bench will hear arguments of CCI in the case on Monday.