Since the passing of the CCI Order, WhatsApp and its parent company, Meta, pursued an arsenal of legal remedies available before Indian courts praying to halt the DG's investigation. However, the Supreme Court of India put a final stop to these applications by choosing not to interfere into the CCI's proceedings against WhatsApp and Meta, initiated under its statutory jurisdiction vested by the Act.2
CCI Order: 'take-it-or-leave-it' indicated a prima facie case
WhatsApp also mandated users to agree to sharing of their account data across all information categories with all Facebook and/or Meta companies, unlike the previous updates which granted users the option to choose whether their data would be shared with Facebook and/or Meta.
Delhi High Court allowed DG's probe
These constitutional proceedings included the question of whether WhatsApp was under a legal obligation to provide an 'opt-out' facility to users – an issue pending adjudication by a Constitution Bench of the apex court.
Firstly, a single judge bench of the Delhi High Court dismissed the applications and held that the CCI would not be stripped of its statutory jurisdiction under the Act solely because an issue surrounding the underlying arrangement was pending before the Supreme Court or a High Court. Upon appeal, a two-judge quorum of the Delhi High Court re-affirmed the single judge's order.4
Supreme Court's final decision of non-intervention
The Supreme Court however stood by the market regulator and resolutely ruled that there was no need for interference into the matter. It noted that, once the CCI has formed a prima facie opinion that there is a case of violation of the provisions of the Act and has initiated its proceedings thereunder, such proceedings cannot be said to lack jurisdiction.
The bench remarked that the CCI should not be delayed any further from proceeding with its inquiry. Additionally, all contentions available to Meta and/or WhatsApp would be open for consideration by the CCI on their own merits, and all observations made by the Delhi High Court would be deemed strictly prima facie or tentative.
The judgment of the Supreme Court re-validates the competition regulator's independent statutory jurisdiction to inquire into and adjudicate upon possible contraventions of the provisions of the Act. It also demonstrates that constitutional courts are now less willing to interfere with CCI's probe orders unless prima facie flaw can be illustrated. Further, considering that probe orders are merely a departmental inquiry or a preparatory step which do not determine the rights and liabilities of the parties, it appears that the common thrust of such non-intervention orders is to prevent stifling of CCI's investigation powers.
Another facet which is worth noting is that while the Supreme Court affirmed the right of the CCI and the DG to investigate, it simultaneously clarified that the Delhi High Court's observations are at best tentative. Arguably, this remark protects the Meta's ability to possibly agitate the same issues in the future. That said, for now, the Supreme Court's message is simple – cooperate with the CCI's investigation in all earnest.
2. Meta Platforms Inc. v Competition Commission of India & Anr., Special Leave to Appeal (C) No. 17121/2022
3. Shri Vinod Kumar Gupta v WhatsApp Inc., Case No. 99 of 2016.
4. WhatsApp LLC & Anr. v Competition Commission of India, LPA 163/2021 & CM APPLs. 15908/2021, 16893/2021, 18800/2021, 18910/2021, 46058/2021, 46059/2021, 46655/2021.
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