WhatsApp Request to Stay Notice from India’s Competition Authority Denied by Delhi High Court

The Delhi High Court on Wednesday refused to stay the notice dated June 4, 2021, to WhatsApp by the Director-General of Competition Commission of India (CCI).

The Division Bench Justice Anup Jairam Bhambhani and Justice Jasmeet Singh said that "we would only urge the DG, CCI to bear in mind that investigation against the appellant is under judicial consideration before a Division Bench of this court."

The bench also underlined that, in our view, there is no doubt that the issuance of impugned notice by the DG is a step in furtherance of the investigation commenced in the suo-motu case, in which the investigation is a subject matter of the challenge in the present Letter Patents Appeal (LPA).

"...we do not consider it appropriate to stay the operation of impugned notice dated 04.06.2021, at this stage..." says the Delhi High Court.

Senior Advocate Harish Salve, appearing on behalf of WhatsApp submitted that while the present LPA is pending before a Division Bench of this court, in an act that smacks of overreach, the DG has issued notice dated June 4, 2021, purporting to be under section 41(2) read with section 36(2) of Competition Act 2002, demanding from the appellant information and response to certain queries, which are 22 in number, and which are already the subject matter of the challenge in the LPA.

Salve also informed the court that related challenges are also pending before the Supreme Court.

Additional Solicitor General, Aman Lekhi, appeared for the CCI stated that he has instructions to say that though the issuance of notice dated June 4, 2021, was perfectly in line with the procedure contemplated under the statute for taking forward an ongoing investigation, which has not been stayed by the Division Bench. He said it would take substantial time for preparation of a report pursuant to the receipt of the information called-for by way of the impugned notice; which report would thereafter be forwarded to the Competition Commission of India.

ASG Lekhi accordingly submitted that preparation of the report would not be completed at least before the next date of hearing before the Roster Division Bench ie, July 9, 2021.

The Delhi High Court had on Monday reserved an order on WhatsApp plea challenging Competition Commission of India (CCI)'s June 4 notice seeking certain information messaging application's privacy policy.

WhatsApp and Facebook have urged the Delhi High Court to stay notice issued by CCI on June 4 against messaging application. The CCI has sought certain information on WhatsApp's new privacy policy.

WhatsApp urged the Delhi High Court to issue direction to authorities concerned not to take any coercive action against messaging application till the next date of hearing.

The fresh pleas were filed by Facebook and WhastApp on an ongoing petition whereby the companies have challenged single-judge bench order dismissing their pleas against the CCI decision.

Earlier, the Division Bench had issued notice to the CCI in the matter.

The single bench of Delhi High Court on April 22 had dismissed Facebook and WhatsApp pleas challenging a CCI order for an investigation into the messaging app's new privacy policy.

The petitioners had challenged the March 24 order passed by CCI directing a probe into the new privacy policy and the probe should be completed within 60 days. Facebook and WhatsApp said that since the issue of WhatsApp's privacy policy is being heard by the Supreme Court, High Court, therefore, there was no requirement of CCI to order the probe.

Senior Advocate Harish Salve and Former Attorney General Mukul Rohatgi appeared for the petitioners and had told the court that CCI proceedings must be kept in abeyance as the matter is pending before Supreme Court and High Court.

Additional Solicitor General (ASG) Aman Lekhi, who represented CCI in the matter, had earlier told the court that the matter is not of privacy but access to data and the Competition is going to deal with metadata.