The Supreme Court on Friday dismissed pleas made by Whatsapp and its parent firm Meta (Facebook) seeking a stay of the Competition Commission of India’s (CCI) probe into their privacy policies. A panel comprised of Justices MR Shah and Sudhanshu Dhulia dismissed WhatsApp and Meta’s pleas appealing the ruling of the Delhi High Court division bench that declined to halt the CCI probe.
The bench made the following observations in the following order:
“The CCI is an independent authority to consider any violation of the provision of the Competition Act 2002. When having prima facie opined that it is a case of violation of 2002 Act and thereafter when the proceedings are initiated by the CCI, it cannot be said that the initiation of the proceedings of the CCI are wholly without jurisdiction. The precedent of the Supreme Court has held that the proceedings before the CCI are required to completed be at the earliest. In view of the above, the CCI cannot be restrained from proceeding further with the enquiry/investigation for the alleged violation of the Competition Act. All the contentions available to the parties are kept open. Any observation made by the High Court be considered as tentative/prima facie”.
Senior Advocate Kapil Sibal, standing for the Meta, stated that a Supreme Court Constitution Bench is currently examining a petition contesting the constitutionality of WhatsApp’s privacy policy, and that the matter has been scheduled for hearing in January 2023. He also stated that a new personal data protection bill will most likely be proposed in Parliament during the winter session. In light of this, Sibal urged the CCI to postpone issuing final orders in the case. However, the bench questioned how the Constitution Bench proceedings could undermine the CCI’s independent statutory authority.
“CCI is an independent statutory body. Their proceedings cannot be stopped”, Justice Shah said.
“I am not saying the proceedings should be stopped. I am just saying don’t pass the final orders”, Sibal replied.
“We don’t know what will be the outcome of their investigation, you approach the CCI and make the request”, Justice Shah stated.
At this point, Senior Advocate Mukul Rohatgi, who was also representing Meta, argued that the CCI lacked jurisdiction. “Allow the probe and inquiry to continue. Then we’ll leave the final order to CCI “, Justice Shah stated one again.
Speaking on behalf of the CCI, Additional Solicitor General of India N Venkatraman stated that the authority is simply investigating the problem of abuse of dominance and is not making any constitutional decisions. As a result, he claims there is no overlap with the Supreme Court proceedings.
“We are a market regulator. We are investigating if their privacy policy constitutes an abuse of dominance. Individuals use WhatsApp; whether the policy is correct has to be seen. Whatsapp shares data, and they then market based on that. This has nothing to do with Article 21. Abuse occurs due to the concentration of data with them “, according to the ASG. He stated that both the single and division benches of the Delhi High Court refused to hear Meta’s case.