WhatsApp on Friday told the Delhi High Court that it has kept its new privacy policy in abeyance till Parliament passes the new Data Protection Bill. A majority of the WhatsApp users have, however, already accepted the new policy.

When the Centre pointed out that WhatsApp has only kept the privacy policy in hold and has not really scrapped it, Chief Justice D N Patel enquired whether WhatsApp has unveiled a similar policy in Europe, the USA or anywhere else in the world.

CCI inquiry

A division bench of Chief Justice and Justice Jyoti Singh was hearing an appeal by WhatsApp and its parent company Facebook against a vacation bench order declining to interfere in an inquiry being conducted by the Competition Commission of India (CCI) on WhatsApp’s new privacy policy.

Mukul Rohtagi, appearing for Facebook, objected to the CCI’s inquiry on the grounds of jurisdiction as the issue of privacy is already being heard by the High Court. The Centre has, in a different case related specifically to WhatsApp’s updated privacy policy, told the High court that the company wants to use its “digital prowess” to push unsuspecting users to accept the updated policy.

Also read: Won’t compel users to accept new privacy policy, WhatsApp tells Delhi HC

Harish Salve, appearing for WhatsApp, questioned the CCI inquiry asserting that it is related to the company’s new privacy policy which has already been kept in abeyance.

“The government’s letter to us establishes that the privacy policy is the starting point. The government said shut it down (the privacy policy). Data sharing is not allowed. We said we will not share the data till the Personal Data Protection bill comes. That is open ended because we don’t know when the Personal Data Protection bill will come. The whole problem relates to privacy policy… The new policy makes it mandatory to share personal information with its subsidiary. It is this update that compulsory sharing that we have put on hold,” Salve said.

“The policy update said in order to be able to use the services the users will have to accept the terms. The government said you can’t do this so we are saying we will not. Now comes the competition practices. Suppose the Data Protection Bill permits me, then it will have a different dimension. If it doesn’t permit, then we won’t do it,” he added.

Also read: India says US social media giants must obey its laws

The Chief Justice asked Salve whether WhatsApp is following the same policy elsewhere in the world. “You are saying that until the Data Protection Bill comes, you will not do it. You have got a different yardstick for India, is that correct? You have given a reply that there is no different policy for Europe and India,” chief Justice Patel asked. “Have you mentioned anywhere that there is no difference between Europe and India. This allegation is being made. This is a bottleneck,” he observed.

Rohtagi questioned the suo motu jurisdiction exercised by the CCI in enquiring into the WhatsApp issue.

“The CCI has initiated a suo motu inquiry. This power has to be sparingly exercised. The Supreme Court is examining the issue of privacy. There are three matters pending in the Delhi HC on policy. The question is, even assuming there is suo motu jurisdiction, can it be exercised when a superior court is seized of the matter. Whether it is propriety, if two higher courts are examining the policy from the point of view of privacy. The very exercise of jurisdiction is completely suspect. Facebook is only the parent of WhatsApp and they are (CCI) going on and on. Ask them to stay their hands,” said Rohtagi.

Aman Lekhi, appearing for the Centre, said there cannot be an objection against an inquiry by the CCI.

“This is only an inquiry. Even after a report is filed which may say there is a violation of the Act or not, it is not as if anything determinative will happen which is why the vacation bench rejected their second attempt to stay. They have already filed their replies,” said Lekhi. The matter was adjourned for July 30.

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