4 min readNew DelhiJul 26, 2022 06:55 AM IST
First published on: Jul 25, 2022 at 06:48 PM IST
Stating that WhatsApp hasn’t stopped implementation of its 2021 privacy policy, the Competition Commission of India (CCI) on Monday said that its probe into the policy was purely through the prism of The Competition Act and it should be allowed to continue with the same.
Following the completion of arguments, the division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad reserved its decision on the appeals of Meta and WhatsApp against CCI probe into WhatsApp’s privacy policy update of 2021.
CCI had last year come to a prima facie conclusion 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.
Additional Solicitor General N Venkataraman, representing the CCI, Monday submitted that the challenge pending before the Supreme Court against the privacy policy would not affect its probe as the writ petitions there have nothing to do with the question of abuse of dominance by Meta-owned company. He further said that by the time the apex court comes to a decision, WhatsApp would have already shared data as there is no stay in the matter.
Venkataraman submitted before the court that even now WhatsApp sends pop-up reminders regarding the privacy policy to users who haven’t accepted its updated terms and conditions. “It is not that they have stopped. What about people who have (already) opted in. We have voluntarily pressed the button sometime without realising,” the ASG argued.
He added, “There is no stay on policy nor have they withdrawn the same” and even if the Supreme Court were to set aside the privacy policy in future, WhatsApp would have to be examined for the “non-withdrawn” period.
WhatsApp on July 9 last year 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.
CCI told the division bench that the single bench dismissed the cases of Meta and WhatsApp in April 2021 but the case hasn’t moved forward due to the pendency of the appeals. Submitting that it has lost much time, CCI asked the court to evolve law to see that the statutory body is compensated for the delay. The Supreme Court has come down heavily against those using judicial process to stall investigation, Venkataraman submitted.
Meta Platforms, the owner of Facebook and WhatsApp, last week had argued that CCI’s ongoing probe against it with regard to the messaging app’s privacy policy was “no innocuous investigation”. The tech giant had termed the competition regulator’s actions as intrusion in its business and said that there was no material to prove it was abusing its market dominance.
A single-bench of the High Court on April 22 in 2021 had 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 next week.
CCI told the division bench that the single bench dismissed the cases of Meta and WhatsApp in April 2021 but the case hasn’t moved forward due to the pendency of the appeals. 
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