The Delhi High Court on Tuesday (April 13) reserved an order by the Competition Commission of India to launch a probe into WhatsApp’s contentious 2021 privacy policy update.

The court was hearing a petition by WhatsApp’s parent company, Facebook Inc, challenging the CCI order. WhatsApp, through its lawyers Harish Salve and Mukul Rohatgi, raised concerns on IT rules during the hearing of appeal challenging the CCI order in the court of Justice Naveen Chawla.

WhatsApp’s lawyers also alleged the ‘CCI jumped the gun’ in its March 2021 order when the matter was sub-judice.

WhatsApp’s contention

WhatsApp submitted before the single judge bench, "The new rules formulated under the IT Act 2000 require WhatsApp to identify the ‘first originator of the messages’. We have issues with compliance with this provision of IT rules. Identifying the first originator of messages will require WhatsApp to read messages. We ensure end-to-end encryption of messages and don’t read the user messages."

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Senior advocate Harish Salve argued, "CCI has jumped the gun, this is a headline-grabbing endeavour by CCI. It’s not for the CCI to decide if the WhatsApp privacy policy is compliant with privacy norms."

"WhatsApp has a business service; it is merely offering to link the business accounts to their Facebook accounts," Salve continued.

What does the CCI say?

Opposing the submission by the popular messenger app, lawyer Aman Lekhi, on behalf of the CCI, submitted, "The CCI was looking into the competition aspect and not the alleged violation of the individual’s privacy, which is sub-judice before the Supreme Court. There is no question of jurisdictional error.”

Lekhi argued that the WhatsApp privacy policy 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.

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Further, Lekhi submitted that the personal data collected by WhatsApp would include the users’ location, device details, the internet service provider and who they were chatting with, leading to the creation of customer profiles, which would be monetised by targeted advertising.

Case files

Taking a suo motu cognisance, on March 24, 2021, the CCI had directed a probe against WhatsApp for alleged abuse of dominant position through its 2021 revised privacy policy. In its order, the commission held, "Commission is of the considered opinion that WhatsApp has prima facie contravened the provisions of Section 4 of the Competition Act (abuse of dominant position) through its exploitative and exclusionary conduct, as detailed in this order, in the garb of the policy update. A thorough and detailed investigation is required to ascertain the full extent, scope, and impact of data-sharing through involuntary consent of users."

The anti-trust watchdog asked its director-general to complete a detailed investigation and file the report within 60 days.

Petitions against the 2021 privacy policy

The government of India had also opposed the 2021 privacy policy update by WhatsApp on the grounds of data privacy and differential treatment for Indian users and their counterparts in the European Union (EU). In the EU, users were allowed to opt out from sharing their data with Facebook companies, while in India the users were asked to “take it or leave it”.

Last month, the central government also urged the Delhi High Court to restrain WhatsApp from implementing its contentious new privacy policy.

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The ministry of electronics and information technology said before the court that WhatsApp’s privacy policy violates the Information Technology Rules of 2011 (IT Rules, 2011) and that it should be restrained from implementing the policy until the court decides on its validity under Indian law.

The government’s submission came following the court’s February 2021 direction seeking the Centre’s response to a petition filed by Dr Seema Singh and others. The PIL challenged the violation of the right to privacy under Article 21 of the Indian Constitution by denying users a choice to protect their personal data and opt out of the policy.

(Edited by : Jomy)

First Published:Apr 13, 2021 6:27 PM IST