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CCI order investigating new Whatsapp policy appears

The Delhi High Court on Tuesday said the CCI’s competition regulator’s directive directing an investigation into WhatsApp’s privacy policy did not reflect an investigation into the abuse of a prominent position but appeared to be concerned about consumer privacy issues.

“It appears to be concerned about consumer privacy issues,” Justice Navin Chawla told the Competition Commission of India (CCI) that the regulator had not considered allegations of human privacy violations considered by the Supreme Court.

“Your order does not indicate that you are investigating allegations of abuse of a senior position,” the court said.

Attorney General Aman Lekhi, from the CCI, said the new WhatsApp policy would lead to excessive data collection and “tracking” of consumers through advertising aimed at bringing in more users and therefore, harassment means higher status.

“There is no question about legal error,” Lekhi said, adding that WhatsApp and Facebook applications challenging the CCI’s decision were “ineffective and misunderstood”.

WhatsApp and Facebook, representing senior lawyers Harish Salve and Mulukul Rohatgi, have challenged the March 24 CCI order to direct an investigation into the new privacy policy.

The Supreme Court, which withheld its order in the case, was told by Lekhi that whether WhatsApp data collection and sharing on Facebook would be anti-competitive practices or the abuse of seniority could only be decided after an investigation.

He said the data collected, which would include personal location, type of device used, their internet service provider and interviewees, would lead to the creation of a customer profile and revenue that would be monetized through targeted advertising and all this would lead to “stalking”.

He further added that the investigation was directed to be the only administrative procedure that had no effect on the public at this time.

The forums have argued that while the Supreme Court and the Delhi High Court were considering a privacy policy, the CCI should not have “jumped the gun” and intervened in the matter.

Salve and Rohatgi argued that the CCI’s decision was to undermine the authority of the Suo Motu Commission.

“It’s like a happy authority,” Rohatgi said.

Salve said the CCI in this urgent case had “left” the competition and was looking into the privacy issues already being considered by the high court and the Delhi High Court.

He said the CCI had ordered an investigation into the privacy policy as at this time WhatsApp had not given the opportunity to leave as was the case before.

He also told the court that private conversations continue to be protected from encryption and that WhatsApp cannot read why people are texting.

Salve also argued that most of the data generated was WhatsApp as the only data provided to customers was their phone number which needed to be registered on the messaging platform.

He said WhatsApp could decide whether to share the information made on its system until such time as there were no data collection rules, the CCI could not say what was excessive and non-existent.

They said the issue of consumer injustice policy was being considered by the high court and the CCI should not have taken up the issue.

In January, the CCI itself decided to look into WhatsApp’s new privacy policy on the basis of news reports in relation to the same.

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