A single-judge bench of the high court presided over by Justice Navin Chawla reserved its order on the two separate petitions moved by the social media giant and the messaging app. Senior Advocate Harish Salve appeared for WhatsApp while senior advocate and former ASG Mukul Rohatgi represented Facebook.
When the matter was being heard by way of video conferencing, Salve told the court, “The said issue isn’t a competitive issue. The CCI has jumped the gun and directed a probe. It’s mere amplification.”
“WhatsApp can’t see the conversation of a user with its friends, family, etc as its End to End encrypted and the new policy doesn’t change anything in this,” said senior advocate Salve while also adding that the new policy is only with regards to the business accounts which are linked to Facebook.
He further went on to argue that WhatsApp does not retain the messages of any of its users. “We do not retain messages. They are deleted from our servers after they are delivered. The backup too is saved on the user’s phone only,” Salve said.
“It’s not my policy, I don’t know why I’m a party to this, I am just the parent company and this is no one’s case that it’s a joint policy,” he argued further.
He argued that the order by the CCI is merely amounting to “perversity” and the exercise of the suo motu jurisdiction by the said Commission is completely “wrong” and “barred”.
Opposing the submissions, Additional Solicitor General (ASG) Aman Lekhi argued that if someone has actually drifted away from the competition laws, it’s the counsels for WhatsApp and Facebook.
He also argued that no relief can be granted to the two social media giants at this stage. “The law does not contemplate any remedy at this stage. It is only when the report is submitted that scrutiny by CCI begins. At this stage, WhatsApp, Facebook are not to be heard,” Lekhi said.
The two tech giants have knocked the doors of the High Court against an order dated March 24, whereby the Commission had directed its investigative arm to conduct a probe against them, after finding that the firms have contravened competition law provisions through their “exploitative and exclusionary conduct” in the garb of the policy updates.
The data sharing policy seemed exploitative and could have exclusionary effects, which have the potential to undermine the competitive process and create further barriers to market entry, the CCI said in its order.
The sharing of users’ personalised data with other Facebook companies in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears to be unfair to users, it added.
Fails to specify types of sensitive personal data being collected
Fails to notify user details of the collection of sensitive personal information
Fails to provide an option to review or amend the information
Fails to provide an option to withdraw consent retrospectively
Fails to guarantee further non-disclosure by the third party