The CCI also said the scope of its inquiry has no overlap with the issue of an alleged infringement of user privacy pending before the Supreme Court.
The bench, also comprising Justice Subramonium Prasad, reserved an order on the appeals after hearing the concerned parties.
WhatsApp and Facebook had subsequently challenged before the single judge CCI’s March 2021 order directing a probe against them, saying that the issue concerning its new policy was already pending consideration before the high court and the Supreme Court.
The single judge on April 22 last year had, however, refused to interdict the investigation directed by the CCI.
“Judicial process cannot be used to thwart investigation . (Pendency of privacy issue before Supreme Court) cannot automatically obviate competition law concerns. There is no overlap in facts. We should be allowed to investigate. There is no overlap in law,” he argued
The ASG said that the infraction on the competition law front may still be happening as there are users who have opted for the policy update and for non-withdrawal period , the policy has to be examined.”
ASG Venkataraman contended that the outcome of the Supreme Court proceedings would have no bearing on the proceedings under competition law which concerns the abuse of dominant position by a market player.
He also said that unless there is a lack of jurisdiction or malafides or arbitrariness, the CCI probe cannot be stalled.
Last week, senior advocate Harish Salve, representing WhatsApp, submitted that it was challenging CCI’s jurisdiction to probe a policy that has now been kept in abeyance and as the government was in the process to bring the Data Protection Bill.
Senior advocate Mukul Rohatgi, appearing for Facebook Inc –now Meta Platforms — had argued that there was not even prima facie material in the case and CCI cannot investigate it in a creeping fashion .
On January 3, while dealing with the appeals against the single judge order, a bench headed by then Chief Justice DN Patel extended the time for filing replies by Facebook and WhatsApp to two CCI notices of June 2021 asking them to furnish certain information for the purpose of inquiry conducted by it. PTI