Thread by @barandbench

Delhi High Court begins hearing Facebook's petition against probe by Competition Commission of India into new WhatsApp Privacy Policy.

@CCI_India @Facebook @WhatsApp

#WhatsAppPrivacyPolicy

Hearing is before Justice Navin Chawla.

#WhatsApp #CCI

@Facebook @CCI_India @WhatsApp

Senior Advocate Harish Salve: Issue is very narrow. WhatsApp has a privacy policy.

When Facebook bought it over, WhatsApp started a Policy in 2016. Matter was challenged in Surpreme Court. Govt of India said they would have a proper framework.. privacy is a major issue in these matters: Salve

This is not a competition issue. Recently, WhatsApp came up with an update. It doens't change the privacy policy. They had given an opt out for pre 2016 customers. Now it's only an amplification. CCI has jumped the gun and started proceedings: Salve

When the sectoral regulator is examining, CCI can't in lawyer two to see the competitive aspect get involved. This is the Airtel judgement. Privacy policy is challenged .. I'm rendering a free service.. you have a choice.. you can take whichever you like : Salve

Privacy is a constitutional concept.. not for the CCI to decide.. Mr Maninder Singh's son challenged the policy.. when CCI jumps the gun..: Salve

What is the prayer in the petition?: Court

Salve says it is to quash the privacy policy.

What should be privacy policy can't change from one service provider to another.. neither you say that it completely contractual : Salve

Govt has to decide contour of privacy: Salve

The matter is pending before the Supreme Court.. this is a headline grabbing endeavour (by CCI): Salve

Salve reads the key updates in the privacy policy of WhatsApp.

Salve reads the CCI order.

We clarified that option if opt out continues. Post 2016 there is no opt out : Salve

Option of*

It's very strange that Facebook said they were the parent company ..they said Facebook is evading. Facebook policy is not in question: Salve

Salve continues to read CCI order.

Read the full story on CCI order here:

barandbench.com/news/cci-calls…

This is all completely different system: Salve as he explains that the data sharing is for business accounts.

WhatsApp cannot see. User conversation is protected by end to end encryption: Salve

Once this was told you them, look at what he says .. CCI goes into relevant market, Harshita Chawla case.. : Salve

This is called raising a ghost and now you want to slay it : Salve

@CCI_India @WhatsApp

Where is the change in the policy? : Salve

Opt out continues for those who opted out in 2016. There is no problem : Salve

This is what is being examined. We are a highly regulated sector. It would either be TRAI or the government: Salve

We have drifted very far away from what is a competition matter. Personal data and privacy is primarily a constitutional virtue. I'm using data available in my own system. To prevent me from doing so, there has to be some law: Salve

He wants to open up 2016. Update doens't say we are altering anything.. I'm using WhatsApp. What I communicate, WhatsApp can't read. But that I'm a user, it's my phone number, that I send 100s of messages..it is data generated within the system. That is what is shared : Salve

This is my own data. If person has to register, it has to give me phone number.. you may have to improve your service. It is commerical use of data created on my system. I'm not asking customer to give me his number. Customer is only giving me his phone number: Salve

What is new in the policy?: Court

Nothing: Salve

WhatsApp started as a free service. But it has huge commerical potential: Salve

It's getting problematic. New regulations have been put in place.. they are in law & order aspect. we are talking to govt.. they may want us to read messages : Salve

2021 update and not just 2016 has been challenged in several fora including this court : Salve

Petitioners in Chaitanya and Seema are intervenors in Surpreme Court.. : Salve

Applications on 2021 policy are pending..This is the matter of which the government is seized : Salve

Salve informs the Court about the matters pending in relation to the 2021 policy.

Impugned order directs investigation to be made into the privacy policy : Salve

Please see what we have put on record: Salve

Respect for privacy is coded in our DNA since we started WhatsApp : Salve as he reads a document.

We do not retain messages. They are deleted from our servers after they are delivered: Salve

You're trying to say that policy has nto changed and this a matter that is sub judice before the High Court and Supreme court : Court

Yes, and sectoral .. : Salve

Salve said that issue with respect to the 2016 policy was brushed aside by the CCI.

Salve reads this order dismissing inquiry against 2016 policy.

When is order is pointed out, they say it only for opt out : Salve

Senior Adv Mukul Rohatgi appears for Facebook.

Facebook is the parent of Whatsapp. It is added as proper party: Rohatgi

WhatsApp policy is not my policy. I cannot be added as a party.. to be embroiled in a litigation. It is nobody's case that it is a joint policy: Rohatgi

Subject matter is before the Supreme Court where originally 2016 policy was in question ..it is also in Delhi High Court : Rohatgi

Issued is issued to challenge to 2021. When challenge is before teh constitutional bench, can a statutory authority say we will start suo motu action ..when when two constitutional authorities are looking into it. I would say this is abuse : Rohatgi

Rohatgi refers to Airtel judgement.

My case is on far better footing.. the exercise of jurisdiction by CCI is wrong and barred and will amount to perversity: Rohatgi

Rohatgi reads the CCI order.

How many people are beneficiaries? Ultimately it will be lakhs: Rohatgi

There is WhatsApp business. It doesn't store any message sent by me to Mr Salve. It is erased forthwith. If I want to purchase ticket with going to MMT or travel agent, I can access WhatsApp and get a ticket thru Air India..in that eventuality, it has to be stored: Rohatgi

What do you mean Facebook is direct beneficiary? Millions will be beneficiaries: Rohatgi

Start of inquiry has serious consequences: Rohatgi

What I do on my platform is not a subject matter : Rohatgi

If people were bothered.. in India people file all sorts of cases. Somebody would have come to CCI : Rohatgi

The DG is told to investigate completely speculative things : Rohatgi

There is an abuse of suo motu: Rohatgi

When matter is already pending in every court, can suo motu be exercised that too against both WhatsApp and Facebook.. there is comity of courts. CCI must respect HC and SC : Rohatgi

Additional Solicitor General Aman Lekhi begins for CCI.

If someone has drifted completely away from competition law, it is the lawyers of Whatsapp and Facebook: Lekhi

It is ex facie absurd : Lekhi

We are dealing with privacy policy, the matter is not of privacy but access to data. Competition is going to deal with meta data : Lekhi

Who is calling whom, thru which device, when and for what purpose .. customer profiling and consumer preference will be monetize and lead to network effect. It is open for both WhatsApp and Facebook to dominate and abuse : Lekhi

There are 2-3 contours.. whether data can be shared by WhatsApp with anyone at all. It violates my privacy or not : Court

It's not a question of privacy.. it then goes to Part III : Lekhi

Text of Part III is in the realm of constitutional court.. sectoral regulator is wrong being called inferior court : Lekhi

First issue is whether data can be shared at all : Court

Whether access to data would lead to abuse of dominant position: Lekhi

Service provider will always have the data.. whether this information which is automatically stored can be used by them without my consent..second is why just Facebook and not other third parties. That is an issue of competition : Court

Third is can you share or not share without my consent. This goes back to privacy. They are saying whether this data is protected or not is pending before court and thus can at this point CCI also come into picture: Court

It is actually one question.. data can have privacy or competition dimension : Lekhi

On privacy aspect, sharing of data can infringe privacy.. a constitutional court will decide. Apart from autonomy, data can be meta data : Lekhi

There is issue of monetization of information.. : Lekhi

That is also a matter of privacy : Court

The submissions have been framed to suggest that CCI is not following comity of institutions. The order is not being read in totality: Lekhi

Issue is completely competition based. Understanding consumer behaviour and preferences. It facilitates targetted advertising: Lekhi

Facebook owns Whatsapp. Whether WhatsApp is going to share with Singal or Telegram? No because they are competing apps : Lekhi

As there will be more advertising, there will be more users.. number will increase on both sides : Lekhi

There will be a barrier to market because of abuse of dominant position. This is what CCI is dealing with. We are at the stage of sec 26(1): Lekhi

The direction is tentative: Lekhi

The law does not contemplate any remedy at this stage. It is only when report is submitted that scrutiny by CCI begins. At this stage, WhatsApp, Facebook are not to be heard : Lekhi

They are intending to represent their case substituting the DG investigation. CCI will come into picture after report comes ...merits of controversy can't be part of writ petition at the time when only direction is issued and there is no report : Lekhi

There is nothing firm or decisive at this stage : Lekhi

Bharti talks about clash of sectoral regulators : Lekhi

There is no clash of sectoral regulators here Surpreme Court is seized of privacy issue and framing of guidelines under IT Act. It has nothing to do with competition: Lekhi

CCI is the sole sectoral regulator for this matter..it is inept to call Surpreme Court a sectoral regulator: Lekhi

Merely because SC is seized of privacy issues it doesn't mean that it is dealing with competition issues: Lekhi

What CCI is dealing with is access to data in terms of consumer and customer profiling : Lekhi

WhatsApp policy is not taking about sharing of data with all companies and not just Facebook: Lekhi

Facebook got Instagram. It got to know about WhatsApp, it bought WhatsApp. When critical mass of users reached, they came up with the policy to wipe out competition: Lekhi

That is not the investigation that you are ordering : Court

Your order doesn't reflect that they are going to look into dominant position abuse. This is in relation to the consumer: Court

CCI presumed that dimension of competition would be understood: Lekhi

Order suggests that you are dealing with privacy: Court

Confusion is because privacy is called privacy policy.. we can't look at the nominal expression policy: Lekhi

Lekhi reads the CCI order.

They are dealing with excessive data collection, use and sharing of it, in anti competitive context: Lekhi

Commission is not concerned with privacy which is before Surpreme Court: Lekhi

"Use, sharing, excessive": Lekhi

Lekhi reads the CCI order.

Lekhi says analysis of data will give more information about a user than physical stalking.

Facebook comes into picture because of the privacy policy which is on data collection: Lekhi

This is the strain that runs across the order: Lekhi

Lekhi says CCI has formed a tentative opinion on exclusionary effect of policy, barriers to market entry, leveraging.

Whether it is discriminatory is in the domain of the Commission. Surpreme Court will not deal with competition facet. It will deal with with privacy facet : Lekhi

Data and data is meta data which would be utilised and impair competition. It would be borne out of investigation. Is this the stage? , Petition is misconceived. It is invoking a right that doens't exist : Lekhi

There is no question of any jurisdiction error. There is no perversity. Just because English is wrong, doesn't mean the order is wrong.. English is not our native language.. it is the brown man's burden: Lekhi

Facebook can't wash its hands off. It is necessary and is a beneficiary: Lekhi

Can order be worse off because Facebook is mentioned? It is for good cause : Lekhi

Can a hearing be given when law doesn't provide for it? : Lekhi

Interference is an exception and not a norm : Lekhi

Inquiry is not about meta data or sharing with Singal.. not about Mr Rohatgi being stalked..it is everything to do with my customer. Orders can't be sustained on flights of fantasy : Salve

Salve reads CCI order.

Salve argues that the issue was with respect to opt out.

My friend was throwing meta data ...meta data in my system doesn't belong to the user : Salve as he points out that CCI order talks about personalised data of user.

Salve reads CCI order, emphasises issue is with respect to "personal data" of users, and sharing of personalised data.

This is exactly what is before the Supreme Court: Salve

Please mark the words "protection of personalised data" : Salve

If it is my data, I may want to monetise it myself. This is exactly the sectoral issue : Salve

Is the issue in suo motu not the same that is before higher courts. Inferior authority cannot jump in : Rohatgi

Whether I called Mr Salve in the morning is also part of privacy. Whether I called for Bombay or Delhi : Rohatgi

CCI proceedings must be kept in abeyance: Rohatgi

If message can't be stored or shown.. these are all aspects of policy: Rohatgi

He's saying whether this data at all can be stored by you (Facebook) : Court

How are we splitting hair? Where are these compartments coming from : Rohatgi

Every telecom operator knows call origination, termination...how will I not know: Salve

You explain it in inquiry : Court

Inquiry is not on that. My ld Friend will not be there to steer the inquiry: Salve

Everybody does it. Every service provider has access to this information: Salve

Senior Advocate Amit Sibal : The jurisdictional fact of inquiry is that privacy policy is unfair to user. Is that pending before the Surpreme Court and High court.

Round two litigation before Surpreme Court is exactly on this ground : Sibal

The jurisdictional fact is pending: Sibal

Mr Salve has said so : Court

This is suo motu case based on media reports, they declined to hear us : Sibal

You can't investigate whether there is prima facie opinion. You make manifest errors.. where is the 26(1) prima facie opinion? : Sibal

Even the original order in 2016 policy was challenged before NCLAT and is pending: Sibal

Reliance is not on personal data. It is a point of dispair. Order has to be seen as a whole : Lekhi

Question of Surpreme Court is irrelevant: Lekhi

Arguments heard. Order reserved : Court

Delhi High Court reserves order in Facebook, WhatsApp challenge to CCI order directing probe into the messaging platform's privacy policy of 2021.

@Facebook @WhatsApp @CCI_India

#WhatsApp #WhatsAppPrivacyPolicy

Delhi High Court hears Facebook plea against probe by CCI into new WhatsApp Privacy policy [LIVE UPDATES]

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#WhatsApp #WhatsappPrivacyPolicy

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