Delhi HC to hear Whatsapp, FB appeals against CCI probe on 21 July

The Delhi High Court Wednesday listed for hearing on July 21 the appeals of WhatsApp and Facebook challenging its single-judge order dismissing their pleas against the probe ordered by the CCI into the instant messaging platform’s new privacy policy and said that the issue of “data sharing” has to be looked into.

A bench of Justices Rajiv Shakdher and Poonam A Bamba adjourned the hearing on the appeals in view of the submission by the senior lawyer for WhatsApp to defer the case for some time in view of the pendency of the data protection law before the Parliament, and directed the parties to file their written submissions in the matter.

“Sharing of data, scrapping of data..someone needs to look into it. Aside this case, they say there are 5,000 data points on every citizen… They can predict what you are going to do in every situation,” Justice Shakdher observed.

Referring to Cambridge Analytica, a Uk-based company which is facing probe for allegedly illegally harvesting data of Facebook users, the judge questioned the aspect of data sharing in “closed groups” on Facebook.

Senior advocate Harish Salve, representing WhatsApp, submitted that WhatsApp “does not look at messages” and only has “external information” such as phone number and volume of trade.

On Facebook, one puts one’s life in public domain, he added.

He told the court that as stated by WhatsApp earlier, until the data protection law comes into existence, it will not coerce its users to opt for the updated privacy policy and when the Parliament is “seized” of the issue, there was no question of CCI continuing with its own investigation into the policy.

“If we have the bill (till the next date of hearing), good. Else decide it on the basis of the law as it is,” Salve said.

The court also extended the interim order granting time to Facebook and WhatsApp for filing replies to two CCI notices asking them to furnish certain information for the purpose of inquiry conducted by it.

In July last year, WhatsApp had told the high court that till the data protection bill comes into force, it would not compel users to opt for its new privacy policy as it has been put on hold.

“Commitment is that I will do nothing till the Parliament’s law comes in. If Parliament allows it, I will have it. If it doesn’t, bad luck.. I’ve taken it off till the Parliament makes a law. Either we fit in or we don’t.”, Salve had said.

The present case relates to the appeals of Facebook and WhatsApp against a single judge order dismissing their pleas against the probe CCI ordered into the instant messaging app’s new privacy policy.

The division bench of the high court had on May 6, 2021, issued notices on the appeals and asked the Centre to respond to it.

The single judge on April 22 last year, had said though it would have been “prudent” for the CCI to await the outcome of petitions in the Supreme Court and the Delhi High Court against WhatsApp’s new privacy policy, not doing so would not make the regulator’s order “perverse” or “wanting of jurisdiction”.

The court had said it saw no merit in the petitions of Facebook and WhatsApp to interdict the investigation directed by the CCI.

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.

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.

WhatsApp and Facebook had challenged the CCI’s March 24, 2021, order directing a probe into the new privacy policy. PTI