Delhi HC reserves order on WhatsApp, Facebook pleas against CCI probe

New Delhi [India], July 25 : The Division Bench of Delhi High Court on Monday reserved the order on petitions filed by WhatsApp and Facebook challenging a Competition Commission of India (CCI) order for an investigation into the messaging app's new privacy policy.
The bench of Justice Satish Chandra Sharma and Justice Subramonium Prasad on Monday reserved the order after the completion of all the submissions by all sides.
Appearing for Facebook Inc, senior advocate Mukul Rohtagi submitted that because Facebook is the formal owner of WhatsApp and the platform is said to share its data with Facebook (parent company) doesn't mean that it is a necessary party to investigate.
While opposing the CCI probe against Facebook, Rohtagi further argued that there is no prima facie material available with the CCI to proceed with investigating it while conducting the investigation of WhatsApp's new privacy policy.
The Division Bench was hearing the petitions of WhatsApp and Facebook challenging the single bench, which had dismissed Facebook and WhatsApp's petitions.
However, Additional Solicitor General N Venkataraman appeared for CCI and submitted that its jurisdiction to investigate WhatsApp's new privacy policy is not closed as the policy in question is neither withdrawn nor stayed by any court or by any judicial forum.
Earlier, the CCI counsel said, "we are presently not able to move forward with the investigation as the matter is being examined by this court."
Earlier in the hearing, the Bench noted that the Data Protection Bill is yet to be finalised by the respondents/Centre while granting time to WhatsApp and Facebook to file their response over the notice issued to them by CCI and sought several details from them.
The court also extended the interim order granted to the appellant earlier by the court.
Earlier, senior advocate Harish Salve appeared for WhatsApp LLC and informed the court that "We are insisting to file response on CCI notices despite the matter being pending before the courts and under judicial consideration."
WhatsApp was sent a notice on June 4, 2021, while Facebook was sent a notice on June 8, 2021, by CCI seeking information and response to certain queries.
Earlier, the Delhi HC urged the Director General and CCI to bear in mind that the investigation against the appellant (WhatsApp and Facebook) is under judicial consideration before a Division Bench of this court.
The bench also stated, "In our view, there is no doubt that the issuance of impugned notice by the DG is a step in furtherance of the investigation commenced in Suo-Motu case, which investigation is the subject matter of the challenge in the present LPA."
"...we do not consider it appropriate to stay the operation of impugned notice dated June 4, 2021, at this stage..." said Delhi High Court Bench had said.
Facebook and WhatsApp had approached the Division bench through an appeal, challenging single-judge bench order dismissing their pleas against the CCI decision.
The single bench of the Delhi High Court on April 22, 2021, dismissed Facebook and WhatsApp's pleas challenging a CCI order for an investigation into the messaging app's new privacy policy.
The petitioners had challenged the March 24 order passed by CCI directing a probe into the new privacy policy and the probe should be completed within 60 days.
Facebook and WhatsApp said that since the issue of WhatsApp's privacy policy is being heard by the Supreme Court, and High Court, therefore, there was no requirement for CCI to order the probe.
Senior advocate Harish Salve and former Attorney General Mukul Rohatgi appeared for the petitioners and told the court that CCI proceedings must be kept in abeyance as the matter is pending before Supreme Court and High Court.
Additional Solicitor General (ASG), who represented CCI in the matter, had earlier told the court that the matter is not of privacy but access to data and the CCI is going to deal with metadata.