WhatsApp, Facebook question CCI’s jurisdiction
Privacy-related issues should only be examined by the relevant court, Salve said. Citing a Supreme Court judgment, Salve argued that the CCI cannot come in to examine competitive concerns and come in while other matters are pending before judicial forums.
Personal data and privacy are constitutional virtues. To prevent me [WhatsApp] from using data available within my own system, there has to be some law. If I am acting in a manner which is anticompetitive, then they [CCI] are free to intervene.
— Harish Salve, WhatsApp counsel
Facebook should not be party to CCI probe: Rohatgi
Facebook is one step removed since it is WhatsApp’s parent company, senior advocate Mukul Rohatgi, also the former Attorney General of India, argued.
The CCI has included Facebook in their proceedings by stating that it can benefit from WhatsApp’s policy change, Facebook cannot be added as a party and go through the entire rigmarole by staking its reputation, Rohatgi said, arguing that that just because both WhatsApp and Facebook are controlled by Mark Zuckerberg, does not mean Facebook should be party to every WhatsApp-related matter.
The social media company had asked the CCI to leave it out of the proceedings, stating that it was a separate legal entity from WhatsApp. The regulator had shot this down and instead reprimanded Facebook from “feigning ignorance” about the potential impact of the policy update. The CCI had said that Facebook would be a direct beneficiary of WhatsApp’s changes.
Both Rohatgi and Salve, representing Facebook and WhatsApp respectively, did not fail to repeatedly mention how WhatsApp cannot see users’ communications since the platform is end-to-end-encrypted.
WhatsApp says when you send messages, is is completely encrypted, and not even WhatsApp can read it. They have started WhatsApp Business as a pilot. If you want to purchase an air ticket, I can access do it via WhatsApp Business, I can pay the company or its agent. Such information will have to be stored [somewhere]. Nobody’s privacy is being violated. I’m being slammed by CCI saying that Facebook is a direct beneficiary and that I am feigning ignorance. What ignorance? — Mukul Rohatgi, Facebook counsel
Issue is not privacy, but access to data and resulting competition concerns: CCI
The question at hand is not of privacy, which becomes a fundamental right issue and falls under constitutional courts, but the issue is of competition. “If conversations are being overheard its a privacy concern and not our concern,” senior advocate Lekhi argued.
The regulator said accusations of it overarching were unwarranted since the issue is exclusively of competition. Here is a paraphrased version of Lekhi’s explanation:
Besides, the CCI has only ordered an investigation, a proceeding which is administrative and not adjudicatory and does not have a punishment. “The CCI will come into the picture only when the investigation report says that there is infact abuse of dominant position. Whether or not a positive report will be filed, is an issue still writ large,” he said.
Traceability will require “opening up” of messages
Salve also mentioned the IT Rules 2021, which require traceability. He said WhatsApp is taking this up to the government, since traceability will require “opening up of messages”. “If you want to know who is the first originator, then I will have to read all the messages,” Salve said.