Stating that there is a distinction between the challenge to privacy policy and the challenge to the CCI probe, Salve assured the judges that no one can read end-to-end encrypted messages under the new policy. However, he said WhatsApp only has the external shell of data, which it has been told is a problem.WhatsApp on Friday told the Delhi High Court it is putting on hold its new privacy policy till the Personal Data Protection Bill (PDP) comes into force. The popular messaging platform, during the course of the hearing in the matter where it is seeking to retrain Competition Commission of India (CCI) from probing the anti-competitive nature of its new policy, also said it would enforce the new privacy policy only if the PDP allows it.
WhatsApp putting on hold the privacy policy means it would not stop any feature or functionality of users who have not accepted its terms and conditions which came into force from May 15. However, it would continue to send updates and messages to such users regarding the new privacy policy. This is something which WhatsApp has said since the time it implemented the new privacy policy, that is May 15.
“We voluntarily agreed to put it (the new policy) on hold…we will not compel people to accept…The government has asked to shut down our policy. We have said we will not enforce it till Data Protection Bill comes out. That is open-ended because we don’t know when the Bill is going to come out…We have said we will not do this for a while. Suppose the Bill allows me to do it, we will have completely different ramifications,” senior counsel Harish Salve, appearing for WhatsApp, told a division bench comprising Chief Justice DN Patel and Justice Jyoti Singh.
“We replied to the ministry of electronics and information technology’s (MeitY) notice seeking a response, saying that WhatsApp will not limit functionality for some time and continue to show users the updated version…We will maintain this approach until Data Protection Bill comes into force. We have voluntarily agreed to put the update on hold till then,” Salve added.
The bench, however, questioned WhatsApp on whether it has a different yardstick or policy for Indian users compared with European users. “Do you have a different yardstick or policy for India? Allegation is that you collect data, give it to others. You can’t do it without user consent,” Justice Patel asked Salve.
Stating that there is a distinction between the challenge to privacy policy and the challenge to the CCI probe, Salve assured the judges that no one can read end-to-end encrypted messages under the new policy. However, he said WhatsApp only has the external shell of data, which it has been told is a problem.
The HC then adjourned the case for further hearing on July 30 even as WhatsApp sought 15 days to file its reply to the CCI’s notice.
Urging the bench to defer the hearing since a similar case is slated to be heard by the apex court on July 22, senior counsel Mukul Rohatgi, appearing for Facebook, questioned how can “sparingly used” suo motu jurisdiction was exercised by CCI when higher constitutional bodies were examining the issue. He pointed to pending cases on WhatsApp’s 2016 privacy policy in the Supreme Court and various benches of the Delhi HC, submitting that CCI should exercise prudence by waiting for the outcome of court cases instead of jumping the gun.
Additional Solicitor General Aman Lekhi on behalf of CCI alleged that Facebook and WhatsApp were in violation of the Competition Act and mere non-implementation doesn’t end the existence of the policy itself.
Citing orders by the HiC’s vacation bench last month which didn’t stall the probe, CCI argued that the policy very much exists as of today. “They are not enforcing compliance. But the policy is in place, it is not the statement of WhatsApp that they are giving it up. As long as policy stands, competition law issues persist…”
The HC is hearing appeals by WhatsApp and Facebook against the CCI’s March 24 decision ordering probe into the updated privacy policy of WhatsApp for breaching the antitrust law. “CCI is of prima facie opinion that the ‘take-it-or-leave-it’ nature of privacy policy and terms of service of WhatsApp and the information-sharing stipulations mentioned therein, merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp,” the CCI order had stated. The CCI in January had on its own decided to look into WhatsApp’s new privacy policy on the basis of news reports.
The single judge had earlier on April 22 rejected the petitions by Facebook and WhatsApp, saying though it would have been “prudent” for the CCI to await the outcome of petitions in the SC and the Delhi HC against WhatsApp’s new privacy policy, not doing so would not make the regulator’s order “perverse” or “wanting of jurisdiction”.
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