The Division Bench of Delhi High Court is expected to pronounce its verdict Thursday on an appeal filed by WhatsApp and Facebook (now Meta), challenging the Competition Commission of India (CCI) probe into the data policies of the social media behemoths.
In January 2021, WhatsApp announced its Privacy Policy and terms of service updates. It was announced that to be able to use the services of WhatsApp, the users will have to mandatorily accept the new terms and policy in their entirety, including the terms concerning expanded data collection practices as well as sharing of the same with other Facebook companies.
As per the previous privacy policy dated August 25, 2016, existing users had an option to choose whether they wanted to share their WhatsApp data with Facebook. However, with the latest update, every WhatsApp user must compulsorily agree to share such data with Facebook.
Based on media reports and the potential impact of the Policy and Terms for WhatsApp users and market, the CCI took suo moto cognisance of the matter and initiated a probe in March 2021.
In its order, the CCI noted that the ‘take-it-or-leave-it’ nature of the privacy policy and terms of service of WhatsApp and the information sharing conditions merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp.
CCI had also noted that data and data analytics have immense relevance for the competitive performance of digital enterprises. For Facebook, the processing of data collected from WhatsApp can be a means to supplement the consumer profiling that it does through direct data collection on its platform.
CCI also remarked that under competitive market conditions, users would have sovereign rights and control over decisions related to sharing of their personalised data
However, WhatsApp and Facebook challenged the CCI’s probe in Delhi High Court. The companies claimed that since WhatsApp’s 2021 policy has been challenged before the Supreme Court and therefore, CCI should not have taken up the matter. However, agreeing with CCI, the single judge bench of the Delhi High Court dismissed the petition filed by WhatsApp and Facebook and allowed the probe to continue.
Subsequently, WhatsApp and Facebook challenged the order of the Single Judge bench of the Delhi High Court before the Division Bench. The Division Bench comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad heard the arguments of WhatsApp, Facebook and CCI in July 2022 and reserved its order.
Published on
August 24, 2022
