Delhi High Court judge recuses herself from Facebook, WhatsApp plea

A single-judge bench of the Delhi High Court on Thursday recused herself from hearing a petition filed by social media giant Facebook and messaging service WhatsApp challenging an order passed by the Competition Commission of India directing a probe against the two over the new privacy policy of the messaging application.

Justice Prathiba M. Singh recused herself from hearing the matter and the same would now be listed before another bench on April 12. The two giants knocked the doors of the high court against a CCI order dated March 24 whereby the CCI directed its investigative arm to conduct a probe against the two companies after prima facie findings that the firm has contravened competition law provisions through its “exploitative and exclusionary conduct” in the garb of policy updates.

The data sharing policy seemed exploitative and could have exclusionary effects which have the potential to undermine the competitive process and create further barriers to market entry, the CCI said in its order.

The sharing of users’ personalised data with other Facebook companies in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears to be unfair to users, it said.

In January, WhatsApp users received messages from the Facebook-owned firm asking them to consent to the updated privacy policy or lose functionality of the app. It later delayed the deadline till May after it faced severe backlash.

WhatsApp announced an update to its privacy policy in January 2021, which deepens its integration with its parent company Facebook, particularly in the realm of business messaging features. The update also provided greater specificity on the kinds of data that are collected by WhatsApp.

In response to initial media reports and commentary, WhatsApp took the defence that the update does not expand its ability to share data with its parent company, and it is merely a clarification of changes that were brought in through the 2016 update to its privacy policy.

Meanwhile, in a separate plea before the Delhi High Court, the Central government filed an affidavit urging the court’s direction restraining WhatsApp from implementing its new privacy policy and terms of service dated January 4.

The MeitY in its affidavit referring to the Personal Data Protection Bill, 2019 submitted, “pending the passage of this Bill, the Information Technology Act, 2000 and the Rules made there under forms the extant regime on data protection, any privacy policy issued by a ‘body corporate’ such as Respondent No. 2 must comply with the requirements specified in the Act and the accompanying Rules.”

MeitY justified that the privacy policy violates 2011 rules on the 5 grounds mentioned below:

Fails to specify types of sensitive personal data being collected,Fails to notify user details of collection of sensitive personal information,Fails to provide an option to review or amend information,Fails to provide an option to withdraw consent retrospectively,Fails to guarantee further non-disclosure by third party.
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