The Delhi High Court Wednesday dismissed a plea by Facebook India challenging the probe ordered by the Competition Commission of India (CCI) into WhatsApp's updated privacy policy of 2021. Justice Yashwant Varma rejected the plea saying there has to be some end to the luxury to litigate.
Facebook India approached the single judge bench after a division bench of the high court in August dismissed its impleadment application in a related matter and granted it liberty to challenge the CCI order by way of a separate writ petition. The division bench on August 25, dismissed the appeals of WhatsApp and Facebook Inc against a single judge's order rejecting their challenge to the probe ordered by the CCI into the instant messaging platform's updated privacy policy.
Facebook India, the Indian subsidiary of US-based Facebook Inc (now known as Meta Platforms), argued that the CCI has clubbed it in its ongoing investigation against Facebook Inc and WhatsApp even though it has not formed any prima facie opinion against it. There has to be a prima facie case which directs the Director General to cause any investigation. "I am aggrieved by the clubbing order. The allegations made are exactly the same. I am a subsidiary but not involved in any policy-making," senior advocate Parag Tripathi, representing Facebook India, said.
Justice Varma noted that the plea by Facebook Inc challenging the CCI probe has already been dismissed by the division bench. With all due respect, you suddenly wake up now and challenge the order. Enough is enough. There has to be some end to luxury to litigate, the high court said and dismissed the plea.
The division bench, in August, had said the single judge's April order was well-reasoned and the appeals were devoid of merits. In April last year, a single judge of the high court refused to interdict the investigation directed by the CCI on the petitions by WhatsApp LLC and Facebook Inc — now Meta Platforms.
In January last year, CCI on its own had decided to look into WhatsApp's updated privacy policy based on news reports regarding the same. WhatsApp had argued before the division bench of the high court that CCI cannot probe a policy which has now been kept in abeyance to await the fate of the Data Protection Bill and as well as the decision of the Supreme Court and the high court on issues concerning the legality of the privacy policy.
Facebook had argued that there was not even prima facie material in the case against it and CCI cannot investigate it in a creeping fashion. CCI, however, had contended that its investigation into the new privacy policy should be allowed to proceed as the policy has not been withdrawn and the scope of its inquiry has no overlap with the Supreme Court proceedings which pertain to issues of an alleged infringement of user privacy.
The anti-trust regulator had said that its investigation concerned WhatsApp's anti-competitive sharing of user data with Facebook and not the issues concerning privacy law and judicial process cannot be used to thwart the investigation. It had also defended the initiation of a probe against Facebook as well in connection with WhatsApp's privacy policy, saying that the former is the holding company of the messaging platform and it can potentially exploit the data being shared.
Before the single judge, WhatsApp and Facebook had challenged CCI's March 2021 order directing a probe against them. While dismissing the petitions against the CCI probe, the single judge had opined that although 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".
