WhatsApp Privacy Case: CCI Can’t Be Asked To Hold Its Hands, Delhi High Court Says
CCI Well Within Its Powers To Investigate, High Court Says
But a single judge bench of Justice Navin Chawla dismissed this argument.
It pointed out that in spite of having come to the conclusion that Telecom Regulatory Authority of India is the expert regulator of the telecom sector, the apex court had stated it would not be sole repository of the jurisdiction to deal even with competition law violations. Similarly, pending cases on the privacy issue does not mean that the CCI is completely denuded of the jurisdiction vested in it under the Competition Act, 2002, or it must necessarily await the outcome of such proceedings.
“….mere pendency of a reference before the larger bench doesn’t denude the other courts of their jurisdiction... Similarly, merely because of the pendency before the Supreme Court and before this Court, CCI cannot be said to be bound to necessarily hold its hands and not exercise the jurisdiction otherwise vested in it under the statute.” —Delhi High Court
In a lot of cases, parties are challenging CCI’s jurisdiction on grounds that some other statutory authority or court is seized of the matter, Abir Roy, partner at Sarvada Legal, pointed out. For instance, Amazon, Flipkart, Monsanto.
But the high court has now made it clear the Supreme Court is examining the policy from the lens of fundamental right to privacy while the issue before the CCI is much broader, Roy said.
Also, the language of the policy, which the CCI had termed as “opaque” in its prima-facie order as it used terms like “includes”, “such as’’ in the context of data that’ll be shared with Facebook, Roy said.
In directing this investigation, the CCI has joined its global counterparts in Germany, Italy and Turkey to examine whether data sharing between WhatsApp and Facebook violates competition law.
In 2017, the Italian competition authority imposed a fine of €3 million on WhatsApp for having forced its users to share their personal data with Facebook.