WhatsApp Privacy Policy: Delhi High Court Dismisses Challenge To Investigation

The Delhi High Court division bench dismissed WhatsApp's challenge to an investigation by the competition regulator into the platform's 2021 update to the privacy policy.

The appeals are devoid of merit, the bench said during the pronouncement of the order.

In March last year, the Competition Commission of India had made a prima facie finding that WhatsApp has contravened competition law provisions through its “exploitative and exclusionary conduct” in the garb of the privacy policy update.

WhatsApp challenged this order before the Delhi High Court. In April last year, a single-judge bench of Justice Navin Chawla dismissed WhatsApp’s arguments and held that the competition regulator hasn’t exceeded its jurisdiction in directing the investigation.

WhatsApp appealed this before a division bench, which pronounced its verdict on Thursday.

Single-Judge Bench Erred In Rejecting The Challenge To Investigation: WhatsApp

WhatsApp had argued before the division bench that the single judge order of April 2021 erred in dismissing its petition challenging the CCI investigation.

The company reiterated its argument that the competition regulator was obligated to exercise restraint and should have refrained from looking into the issue when the Delhi High Court and Supreme Court of India were also seized of challenges to the privacy policy.

Even the single-judge bench noted that it would have been prudent for the CCI to have awaited the outcome of the cases before the apex court and the high court but it erroneously held that the regulator was not obligated to exercise such restraint, WhatsApp told the division bench.

The company also argued against the single judge's observation that the regulator had merely directed an investigation without impacting WhatApp’s civil rights. The single judge bench, the platform argued, however, did not appreciate that a CCI order subjects the company to the rigours of an intrusive investigation by the director general whose powers are far more sweeping and wider than the investigating powers of the police.

Facebook India, too, argued in the case and said it was not a necessary party for the purposes of the DG investigation.

The regulator failed to name or make any specific observations against Facebook India, much less a prima facie finding of abuse of dominance, the company argued.

CCI Opposed WhatsApp’s Plea

The competition regulator opposed WhatsApp’s plea arguing that its order was merely a starting point for an investigation and no conclusions have been made against the company.

The regulator argued that there was no overlap between what was being considered by the courts and the CCI as far as the 2021 privacy policy was concerned.

The courts in Karmanya [case before the top court], Chaitanya Rohilla & Dr. Seema Singh [cases before the Delhi High Court] will conduct a public law scrutiny limited to violation of fundamental rights particularly user privacy, the regulator told the division bench.

The regulator also said its order directing the investigation satisfied the requirements to establish a prima facie case.

A careful analysis of the 2021 policy was conducted and a detailed order was passed even though the Supreme Court had earlier held that such an order is an administrative order where only minimum reasons are needed to be given, the regulator argued.