Lekhi also said there was no threat looming over the head of WhatsApp till the report on the inquiry was submitted by the director general of investigation before the CCI.WhatsApp and its parent firm, Facebook, on Monday, in a fresh application urged the Delhi High Court to stay the Competition Commission of India’s (CCI) notice asking them to furnish certain information with regard to the probe into the messaging platform’s new privacy policy.
Monday was the last day for furnishing the information sought by the competition watchdog in relation to a probe ordered by it in March. The information was sought after the single judge had on April 22 dismissed WhatsApp and Facebook’s appeal against the probe.
The appeal against the order of single judge by the two firms is pending before a division bench of the HC.
Senior counsel Harish Salve and Mukul Rohatgi, appearing for WhatsApp and Facebook, respectively, requested the bench to stay the June 4 notice on the grounds that the last date to respond was Monday itself. Salve argued that WhatsApp’s privacy policy was already under challenge in the Supreme Court and the Delhi High Court and the anti-trust regulator should not have intervened in the issue. Besides, the government was also looking into it, the two social media platforms contended.
Stating that the CCI’s decision was an abuse of its suo motu jurisdiction, they alleged that the Commission had drifted far away from the competition issue and was looking into privacy issues which were already before the apex court and the Delhi High Court.
“Why did they wait for June 4 evening to issue the notice? They could have done it earlier,” Rohatgi questioned.
Additional solicitor generals, Aman Lekhi and Balbir Singh, representing CCI, opposed any stay, saying furnishing of information will not lead to any order by the CCI at this stage of inquiry. They also said that this was not the first notice issued to them.
Lekhi also said there was no threat looming over the head of WhatsApp till the report on the inquiry was submitted by the director general of investigation before the CCI.
Singh also said that since there was a statutory order against Facebook and WhatsApp, they should not use the HC’s order to argue that they will not furnish the information sought by CCI at this stage.
A vacation bench comprising justices Anup Jairam Bhambhani and Jasmeet Singh while reserving their order said that it would not like to go into the merits of the case as the regular bench led by Chief Justice was scheduled to hear the main petitions on July 9. However, it said that it will pass an order later in the day. The order was not uploaded by the court till the time of going to the press.
The CCI had on March 24 ordered 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 Supreme Court and the Delhi High Court 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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