Appearing for WhatsApp, Senior Advocate Harish Salve, however, told the bench of Chief Justice D N Patel and Justice Jyoti Singh: “We will continue to display our updates from time to time to people who have not accepted. In addition, we will display the update whenever a user chooses relevant optional features like when a user communicates with a business receiving support from Facebook.”
WhatsApp and Facebook have approached the court against a March 24 CCI order in which the competition regulator came to the 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.
Salve, while explaining the latest position, said “the update (of policy) which triggered the enquiry of CCI is for the present… we have voluntarily agreed to put it on hold.”
He also argued that if Parliament tomorrow does not permit such a policy, WhatsApp has two choices: it will either “close the shop in India” or not “do it” while referring to implementation of the new policy.
“The commitment is that I will not do anything till the parliamentary law comes. Obviously, then if parliamentary law comes, you have to fit within that law. If Parliament allows me to have a separate policy for India, assuming we have, I will have it. If it does not allow me, then bad luck. I will then have to take a call,” he said.
He said WhatsApp’s challenge against the CCI inquiry has now become stronger. “Today, this entire inquiry is in the air. You are inquiring into the implications of a policy which the Government of India has told me to ‘take it off’ and I have taken it off till the time Parliament makes a law,” he said.
“The objection was to ‘take it or leave it’. We are now saying that for the present this ‘take it or leave it’ is something which we are not doing. If you (user) allow us, we will share. If you don’t allow us, things lie where they are,” he said.
The division bench of Chief Justice Patel and Justice Singh adjourned the matter to July 30 for the next hearing after noting that the CCI’s reply was not on record.
“What WhatsApp is saying is only that so far its decision is concerned, that is being deferred but the policy stands,” Lekhi said.
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