The matter has been listed on July 9, when a vacation bench of Justices Anup Jairam Bhambhani and Jasmeet Singh may pass an order on the application. The bench refused to delve into the matter as the main petition was pending before another bench headed by the Chief Justice.
A look into the arguments during the hearing
Senior advocate Mukul Rohatgi, appearing for Facebook: He said the question here is of propriety, and that it was not correct as the Supreme Court was looking into the matter. “Why did they wait for June 4 evening to issue the notice? They could have done it earlier,” he asked.
Additional Solicitor General (ASG) Aman Lekhi, representing CCI: Lekhi opposed the pleas saying that at the stage of inquiry, the furnishing of information will not lead to any order by the CCI and that the notice is in pursuance of the inquiry which was not stayed by the high court. He added that this was not the first notice issued to them.
Issue ongoing since March
WhatsApp, Facebook had questioned 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 examine competitive concerns and come in while other matters are pending before judicial forums.
Facebook should not be party to CCI probe: Rohatgi
During the hearing before the one-judge bench, senior advocate Mukul Rohatgi said that the CCI had included Facebook in their proceedings by stating that the social media company will benefit from WhatsApp’s policy change. Rohatgi argued 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 for “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 regulator said accusations of overarching were unwarranted since the issue is exclusive of competition. Here is a paraphrased version of Lekhi’s explanation:
- Facebook, WhatsApp, and CCI spar over regulator’s jurisdiction as Delhi HC reserves judgment