CCI order to probe Whatsapp's new policy appears concerned with privacy of consumers: HC

The Delhi High Court on Tuesday said that competition regulator CCI's order directing a probe into WhatsApp's privacy policy does not reflect an investigation into abuse of dominant position and rather appears to be concerned with privacy issues of consumers.

"It (order) appears to be concerned with the privacy issues of consumers," Justice Navin Chawla said in response to the Competition Commission of India (CCI) stand that the regulator was not examining the alleged violation of individuals' privacy which was being looked into by the Supreme Court.

"Your order does not reflect it is an investigation into the alleged abuse of dominant position," the court said.

Senior advocate Aman Lekhi, appearing for CCI, said the new privacy policy of WhatsApp would lead to excessive data collection and "stalking" of consumers for targeted advertising to bring in more users and is therefore, an alleged abuse of dominant position.

"There is no question of jurisdictional error," Lekhi said and added that WhatsApp and Facebook's pleas challenging the CCI's decision were "incompetent and misconceived".

WhatsApp and Facebook, represented by senior advocates Harish Salve and Mukul Rohatgi, have challenged the CCI's March 24 order directing a probe into the new privacy policy.

The high court which reserved its order in the matter was told by Lekhi that whether the data collection by WhatsApp and sharing it with Facebook would amount to an anti-competitive practice or abuse of dominant position can be determined only after the investigation.

He argued that the data collected, which would include an individual's location, the kind of device used, their internet service provider and whom they are conversing with, would lead to creation of a customer profile and preference which would be monetised by way of targeted advertising and all this amounts to "stalking".

He also said that the investigation ordered was only an administrative proceeding which did not have any civil consequence at this stage.

The two social media platforms have contended that when the top court and the Delhi High Court were looking into the privacy policy, then CCI ought not to have "jumped the gun" and intervened in the issue.

Salve and Rohatgi contended that CCI's decision was an abuse of the commission's suo motu jurisdiction.

"It is like a trigger happy jurisdiction," Rohatgi said.

Salve said that the CCI in the instant case has "drifted far away" from the competition aspect and was looking into the privacy issue which was already being looked into by the apex court and the Delhi High Court.

He said that CCI has ordered a probe into the privacy policy as this time WhatsApp has not given the opt-out option as was done in the past.

He further told the court that private conversations continued to be protected by end to end encryption and WhatsApp cannot read what people message each other.

Salve also contended that the most of the data generated belonged to WhatsApp as the only data provided by customers was their phone number which is required to register on the messaging platform.

He said WhatsApp can decide whether to share the data generated on its system and till the time there is no regulation on data collection, CCI cannot say what is excessive and what is not.

They said the issue of the policy being unfair to consumers was being considered by the apex court and therefore, CCI ought not to have taken up the issue.

In January, the CCI on its own decided to look into WhatsApp's new privacy policy on the basis of news reports regarding the same.