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WhatsApp and Meta have approached Supreme Court challenging the decision of a Division Bench of Delhi High Court order passed on August 25 this year. The Delhi High Court had dismissed their plea to restrain Competition Commission of India (CCI) from proceedings with its probe from examining the privacy policy update announced by WhatsApp in 2021.
Interim stay sought
In the appeal, WhatsApp and Meta have contended that the order of Delhi High Court improperly allowed CCI to conduct an investigation into, and issue an order on, factual and legal questions that are already pending before the Supreme Court and the Delhi High Court.
The digital platforms have in the appeal alleged that, rather than exercising the “requisite restraint”, CCI initiated the investigation to answer many of the same factual and legal questions that the Supreme Court and the Delhi High Court will be deciding – questions that form the basis of CCI Order.
The matter is likely to be listed for hearing before SC on Friday.
WhatsApp and Meta have in the appeal sought for interim relief of stay on the operation of final order and judgment of Delhi Court pronounced on August 25 until the disposal of the Special Leave Petition. They have also sought stay on the CCI’s March 24 order that directed an investigation, sources added.
Proceedings before CCI
Earlier, in January 2021, WhatsApp announced privacy policy and terms of service updates. Users had to mandatorily accept the new terms and policy in their entirety, including those concerning expanded data collection and sharing with other Facebook companies.
Under the previous privacy policy dated August 25, 2016, users could choose whether or not they wanted to share their WhatsApp data with Facebook.
In March 2021, the CCI passed an order forming a prima facie opinion of the violation of Section 4 of the Competition Act, and directed an investigation.
“Data is the new oil”
Delhi High Court while dismissing the plea of WhatsApp noted in its order that “WhatsApp occupies a dominant position in the relevant product market and that there exists a strong lock-in effect which renders its users incapable of shifting to another platform despite dissatisfaction with the product – as is exemplified by how, despite an increase in the downloads of Telegram and Signal when the 2021 Policy was announced, the number of users of WhatsApp have remained unchanged. By and large, to ensure retention of its user base and to prevent any other disruptive technology from entering the market, data is utilised by tech companies to customise and personalise their own platforms so that its userbase remains hooked. When data concentration is seen through this prism, it does give meaning to the new adage that ‘data is the new oil’, and, as noted in the CCI Order dated March 24, 2021, it raises competition concerns because it prima facie amounts to imposition of unfair terms and conditions upon its users...”.
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