The single-judge bench of Justice Navin Chawla found no merits in the petition and denied to quash the Competition Commission of India’s order.
The High court had reserved its order on April 13.
The matter was argued by three parties including Senior Advocate Harish Salve appearing for WhatsApp, Senior Advocate Mukul Rohtagi for Facebook, and Additional Solicitor General Aman Lekhi for CCI.
Sr. advocate Harish Salve argued that the CCI’s order stating that there was allegedly excessive data collection being effectuated by the new policy, and it needed to be examined whether excessive data collection would have anti-competitive implications was infringing upon an issue outside its bounds. He added that it is in fact the government that has to make a law on the issue.
“Primary aim of the 2021 policy is to provide users more transparency and to inform users how business services work for providing optimal benefits. WhatsApp has a separate business service – providing for linking it with Facebook,” Salve said.
He further submitted that WhatsApp cannot see users’ personal conversations with their friends and family as they are protected by end-to-end encryption and that the 2021 updates don’t change this.
He further added, “There was no addition to the old policy and that the new policy was brought out purely for business and commercial users, to enable them to use in a particular way – a way for WhatsApp to come clean about how it was going to use the data it has collected.”
Senior Advocate Mukul Rohtagi appearing for Facebook contended that it was nobody’s case that it is a joint policy and therefore no order could have been passed against Facebook by the Competition Commission of India.
Raising questions about the jurisdiction, he argued that the CCI was an “inferior” body that couldn’t adjudicate upon the issue while the challenges were still sub judice before constitutional authorities.
“If a controversy is ongoing, can the CCI say, “No, I’m a creature of statute,” and jump into it when it’s already pending before constitutional authorities? I’m challenging the jurisdiction of CCI to do this,” he contended.
Whereas, Additional Solicitor General Aman Lekhi argued that the matter here is not of privacy but of access to data, and therefore CCI was acting well within its ambit.
“The CCI will come into the picture only when the investigation report says that there is in fact abuse of dominant position. Whether or not a positive report will be filed, is an issue still writ large,” ASG Lekhi said.
ASG Lekhi further added, “The question was whether in a data driven eco-system whether excessive data sharing or use would result in anti-competitive consequence. The analysis of the data collected by WhatsApp will give even more information about an individual than actual physical stalking.