Facebook Argues That CCI Cannot Probe It While Inquiring Into WhatsApp's Privacy Policy

On Friday, July 22, Senior Advocate Mukul Rohatgi appeared before the Delhi High Court and argued that Competition Commission of India (CCI) could not start investigation into Facebook while its probe into the privacy policy of Whatsapp was being conducted.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad heard appeals filed by WhatsApp and Facebook. The plea challenged the single-judge’s order which had declined to stay the CCI probe into WhatsApp’s privacy policy. Introduced in 2021, the new privacy policy allowed Facebook to access WhatsApp data. This was termed as breach of privacy.

Rohatgi further submitted that WhatsApp and Facebook were two different entities. 

“The fact that WhatsApp can share items with certain people does not mean they could all be the necessary parties. These policies are not my policies. Whether it breaches the right to privacy is to be seen but merely because they share it with X, Y or Z is not a ground to investigate me,” the Senior Counsel for Facebook emphasised.

He went on to argue that just because Facebook is WhatsApp’s formal owner and the messaging platform is said to share its data with the parent company doesn’t mean that it is a necessary party to the probe.

It was further contended by Rohatgi that the demand of judicial discipline was that CCI did not act in this manner because challenge to WhatsApp’s privacy policy of 2016 as well as 2021 is still pending adjudication before courts.

“They are asking me to show my revenue and balance sheet. It is not an accounting issue. If the highest court in the land is seized of the matter, I dare say, it is a matter of judicial discipline that they not act in this manner,” Rohatgi argued.

Senior Advocate Parag Tripathi appeared for Facebook Indian Online Services Pvt Ltd. He contended that it had nothing to with the privacy policy yet, it too, has been roped in the probe.

Tripathi, relying on Section 26 of the Competition Act, stated that CCI needed to have some reason to initiate a probe into its affairs but it had begun the inquiry without giving any reason.

Senior Advocate Harish Salve appeared for WhatsApp had contended that the investigation was not under challenge. The challenge was against the Commission’s jurisdiction to hold inquiry into the matter.

It was submitted by Salve that the commission probed its privacy policy whose operation had been kept in abeyance. It was further argued that the cause of action had disappeared as the government was in the process to launch the Data Protection Bill, 

Meanwhile, Senior Advocate Parag Tripathi appeared for Facebook Indian Online Services Pvt Ltd and argued that it has nothing to with the privacy policy yet, it too, has been roped in the probe.

Tripathi said that under Section 26 of the Competition Act, the CCI has to have some reason to start a probe into its affairs but it has been done without giving any reason.

The matter will now be heard on Monday when ASG N Venkatraman will present his arguments for CCI.