The Delhi High Court held that the investigation initiated by the CCI is to look into competition concerns arising out of the amended privacy policy of WhatsApp. It said that mere overlap of a certain aspect of an issue as framed by two different bodies does not violate the principle of ‘judicial discipline’.

Introduction

The Delhi High Court in a recent judgment dismissed the appeals filed by Whatsapp LLC and Facebook Inc. challenging the order passed by the Single Judge of the same court and the order passed by the Indian competition commission directing the Director General (DG) to conduct a detailed investigation into the competition concerns arising out of the amended privacy policy of Whatsapp LLC under section 26(1) of the Act. The High Court has held that the order passed by the Single Judge is well reasoned and it finds no reason to interfere with the same.

Background

The Competition Commission of India (CCI) took suo moto cognisance of the change in privacy policy of Whatsapp LLP and held that a recent step taken by the firm to force the users into ‘take-it or leave-it’ policy leaves little or no scope for them but to accept the intrusive terms and conditions as put by the company. As per the said option, WhatsApp would allow itself to share various user data-pointers on the messaging platform with other Facebook-owned entities for the commercial benefit of the group.

Facts of the case

The facts of the case were such that Whatsapp LLC is one of the major players in the Indian messaging-app service market where the same accounts for more than 95% of the market share. The company had made timely changes to its privacy policy when the most recent one was in 2021 where it had introduced the purported ‘take-it or leave-it’ condition for the users thereby either exposing them to various intrusive business and marketing practices of the Facebook group (‘Meta group’), or striping them of the services provided by the platform as a whole. Unlike in majority of the cases, the CCI took suo moto cognisance of the matter and ordered a DG investigation into the matter.

Analysis

Whatsapp submitted before the Court that the challenge mounted by it is jurisdictional in nature. The main contention of the said entity was that the issues identified by the CCI in the 26(1) order are identical to the ones looked into by the Government of India, the Delhi HC and the Hon’ble Supreme Court and therefore, the principle of ‘judicial discipline’ would demand that the CCI should refrain from passing any order into the matter. The company paid reliance on the law laid down in Vinod Kumar Gupta v. Whatsapp Inc. and Bharti Airtel case by the CCI and Hon’ble SC respectively to buttress its case.

The Court while dismissing the said appeal held that none of the issues as identified by itself and the Hon’ble SC, also portrayed as ‘similar’ by Whatsapp, look into the competition concerns arising out of the privacy policy as done by the CCI. Given that it wasn’t the case of the Appellants that the said amended privacy policy doesn’t result into competition concerns, the High Court correctly dismissed the appeal and let the CCI proceed with its investigation.

Conclusion

The Court did make a reference to the lack of data protection framework in India. Even though the Hon’ble SC through the Puttuswamy judgment has recognised the ‘right to privacy’ as a fundamental right under the Indian constitution, the lack of a subsequent statutory framework and a dedicated regulator has led to certain gaps in the enforcement framework of it. The said judgment, even though not contributing to the statutory framework, does address the question of a dedicated regulator in the form of a competition regulator which can also look into data collection and processing policies of the Big Tech firms in a time-bound manner.