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TMI Blog2025 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... wn merits. The directions which have been issued in paragraph 247.1 and 247.2 are with respect to "for advertising purposes" and "for purpose other than advertising". Insofar as sharing of user data for advertising purposes, the said is going on from 2016 when 2016 privacy policy was enforced. The ban of five years which was imposed in paragraph 247.1 may lead to the collapse of business model which has been followed by WhatsApp LLC. It is also relevant to notice that WhatsApp is providing WhatsApp services to its user free of cost - the ban of five years imposed in paragraph 247.1 need to be stayed. We, however, are of the view that the directions issued by the CCI under paragraph 247.2 and 247.3 need not be stayed and they need to be complied with. The only limited interim order which we are inclined to grant is to stay the direction in paragraph 247.1 by which five years' ban has been imposed. The direction in paragraph 247.1 are stayed. Penalty - It is submitted by Appellant that 25% penalty has already been deposited - HELD THAT:- Subject to deposit of 50% of penalty (after taking into consideration 25% already deposited), the direction in paragraph 263 need to be stayed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... countries. On 19.01.2021, CCI took suo moto cognizance of 2021 update and registered Suo Moto Case No.01 of 2021. CCI passed an order on 19.01.2021 under Section 19(1) seeking information from WhatsApp LLC and Meta Platforms. WhatsApp challenged the proceeding initiated by CCI by means of Writ Petition in Delhi High Court "WhatsApp LLC vs. CCI" which Writ Petition came to be dismissed by a learned Single Judge, LPA was also dismissed on 25.08.2022 and SLP against the order dated 25.08.2022 also came to be dismissed by the Hon'ble Supreme Court on 14.10.2022 filed by Meta Platforms. The Director General initiated investigation against WhatsApp 2021 update and submitted a report. WhatsApp sent a letter to the Ministry of Electronics and Information Technology on 22.05.2021 undertaking that it will not limit the functionality of how WhatsApp works for users who have not yet accepted the 2021 update and will continue to display the update to users who have not accepted the 2021 update from time to time and will maintain the same until data protection law comes into effect. 3.2. Two cases were also subsequently clubbed with the suo moto case being Case Nos.05 of 2021 and 30 of 2021. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney General of India and other Senior Advocates that Digital Personal Data Protection Bill 2022 is on anvil. It is submitted that when the Hon'ble Supreme Court has not granted interim order, CCI ought not to have founded its order on the violation of privacy policy 2021 and imposed penalty and directions. It is submitted that the Act has already been approved by the Hon'ble President and Gazetted namely Digital Personal Data Protection Act 2023 on 11.08.2023 and the Commission was to await the enforcement of the Act for finding any violation by WatsApp LLC. The remedies on privacy and data protection are without jurisdiction and expertise of CCI. The Commission is not appropriate authority to impose privacy and data protection requirements. It was noticed by the Hon'ble Supreme Court in its order dated 01.02.2023 the undertaking of the WhatsApp that even if those users who have not opted for 2021 privacy policy, they shall be continued to use the WhatsApp services. WhatsApp has not discontinued the users who have not opted for 2021 privacy policy and they are still getting the service of WhatsApp. It is submitted that there is a strong prima facie case in favour of WhatsApp. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding and the Hon'ble Supreme Court did not prohibit the Commission to proceed with the proceedings. It is submitted that the Commission has jurisdiction to take proceeding under the Competition Act 2002 and impose penalty and other measures which is well within jurisdiction of the Commission. Violation of Section 4 having been found to be proved, the Commission was well within its jurisdiction to pass appropriate order and impose penalty. WhatsApp is a dominant and it has abused its dominance which has been found proved after considering all relevant evidence. It is submitted that the Commission has every jurisdiction to proceed with the suo moto investigation and pass final order. It is further submitted that the Appeals itself may be heard finally and decided. It is submitted that no case has been made out to pass any interim order. It is submitted that the Commission also request for hearing of the Appeals at an early date. 8. We have considered the submissions of the Counsel for the parties and perused the record. 9. We need to first notice the directions and order issued by the Commission in the impugned order. In exercise of jurisdiction under Section 27(a) of the Competiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only (Rs. Two Hundred Thirteen Crores and Fourteen Lakhs only), upon Meta for violating Section 4 of the Act. Meta is directed to deposit the penalty amount within 60 days of the receipt of this order." 11. We need to notice first the order of the Hon'ble Supreme Court dated 14.10.2022 which was passed in the SLP filed by WhatsApp LLC and Meta Platforms challenging the order of the Division Bench of the Delhi High Court by which its LPA was dismissed. Writ Petition was instituted by WhatsApp challenging the initiation of suo moto proceeding by CCI. The Hon'ble Supreme Court dismissed the SLP. It is useful to reproduce the entire order dated 14.10.2022 which is as follows:- "We have heard Shri Kapil Sibal, learned Senior Advocate, appearing on behalf of the petitioner in SLP (C) No. 17332/2022 and Shri Mukul Rohatgi, learned Senior Advocate with Shri Tejas Karia, learned Advocate, appearing for the petitioner in SLP (C) No. 17121/2022 and Shri N. Venkataraman, learned ASG appearing on behalf of the Competition Commission of India [CCI] and having gone through the impugned judgment and order passed by the High Court, no interference of this Court is called for. The CCI is an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not interfered but the ultimate order passed by the Commission has to be tested on its own merits. 13. Now we may notice the order passed by the Hon'ble Supreme Court dated 01.02.2023 which is relied by Counsel for the Appellant where according to the Appellant, 2021 update privacy policy was not stayed by the Hon'ble Supreme Court. The copy of the order dated 01.02.2023 has been brought on the record in the Appeal as Annexure 13. It is to be noted that the said order was passed in Special Leave to Appeal 804 of 2017 which was filed by Karmanya Singh Sareen dismissing Writ Petition challenging the 2016 privacy policy. In the said SLP, an IA was filed being IA No.6140 of 2021 where privacy policy 2021 was sought to be stayed with certain further directions. It is useful to notice the following part of the order of the Hon'ble Supreme Court dated 01.02.2023 dealing with the IA No.6140 of 2021: "At this juncture, Mr. Shyam Divan, learned senior counsel would then pray for an interim order being passed in I.A. No. 6140 of 2021 in SLP (C) No. 804 of 2017. He took us through the I.Α. and prayed that the reliefs which are sought for as directions may be granted. They read as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s approach reinforces the choice that people have in how they use WhatsApp, which was our intent from the beginning with this update. We will maintain this approach at least until the forthcoming Personal Data Protection (PDP) bill comes into effect." Learned senior counsel for the petitioners, no doubt, would pray for an interim order to the effect that even those persons who may have agreed to the terms of privacy policy declared by WhatsApp either in terms of the Privacy Policy of the year 2016 or even of the Privacy Policy of 2021 should have the right to opt out, which means, according to them that while they should be permitted to use WhatsApp, their agreement to allow the use of data should not stand in the way of their wriggling out of their obligation, under which WhatsApp would have the right to share the data. We would think that we may not be justified at this stage in granting the relief as sought by the petitioners in I.A. No. 6140 of 2021. The matters may require consideration of the issues which arise in these petitions. As things stand, however, apart from noticing and recording the stand of WhatsApp that they have given an undertaking which is contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "for purpose other than advertising". Insofar as sharing of user data for advertising purposes, the said is going on from 2016 when 2016 privacy policy was enforced. The ban of five years which was imposed in paragraph 247.1 may lead to the collapse of business model which has been followed by WhatsApp LLC. It is also relevant to notice that WhatsApp is providing WhatsApp services to its user free of cost. We have also noticed that the Hon'ble Supreme Court has not granted interim order staying 2021 privacy policy and Digital Personal Data Protection Act 2023 has also been passed and is likely to be enforced which may cover all issues pertaining to data protection and data sharing. We are of the prima facie view that the ban of five years imposed in paragraph 247.1 need to be stayed. We, however, are of the view that the directions issued by the CCI under paragraph 247.2 and 247.3 need not be stayed and they need to be complied with. The only limited interim order which we are inclined to grant is to stay the direction in paragraph 247.1 by which five years' ban has been imposed. The direction in paragraph 247.1 are stayed. 18. Now coming to the penalty, the Commission in paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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