The court emphasized that the order passed under Section 26(1) of the Act is purely administrative in nature and does not entail any consequence on the civil rights of the petitioner(s). It also highlighted that the respondent no.1 has to proceed within its own jurisdiction, applying the law as it stands presently.

JUDGMENT

Navin Chawla, J. - These petitions have been filed challenging the order dated 24.03.2021 passed by the respondent no.1 under Section 26(1) of the Competition Act, 2002 (hereinafter referred to as the 'Act'), forming a prima facie opinion of the violation of Section 4 of the Act by the petitioners, and directing the Director General of the respondent no.1 to cause an investigation to be made into the WhatsApp 2021 Update to its Terms and Privacy Policy.

2. The petitioner in W.P.(C) No.4378/2021 is providing software based application for sending and receiving variety of media texts, photos and videos, calls etc. by using the internet. It was acquired by the respondent no.2 (petitioner in W.P.(C) No.4407/2021) in the year 2014. It is claimed that WhatsApp is used by more than a billion users throughout the world and over 400 million users in India.

3. It is stated that prior to 25.08.2016, the Agreement between WhatsApp and its users was governed by the Terms of Service and Privacy Policy dated July, 2012. On 25.08.2016, WhatsApp updated its Terms and Services of Privacy Policy (hereinafter referred to as the 2016 Update'). It is claimed that WhatsApp users prior to the 2016 Update were given a one-time opportunity to 'opt-out' of Facebook using their WhatsApp account information. The users who joined WhatsApp after the release of 2016 Update, however, were not offered this 'opt-out' option.

4. The 2016 Update was challenged in a Public Interest Litigation, being W.P.(C) 7663/2016 titled Karmanya Singh Sareen & Anr. vs. Union of India & Ors., before this Court. This Court by its judgment dated 23.09.2016, was pleased to dispose of the petition with the following observations and directions:-

"20. Having regard to the complete security and protection of privacy provided by the Respondent No.2 initially while launching "WhatsApp" and keeping in view that the issue relating to the existence of an individual's right of privacy as a distinct basis of a cause of action is yet to be decided by a larger Bench of the Supreme Court [vide K.S. Puttaswamy (supra)], we consider it appropriate to issue the following directions to protect the interest of the users of "WhatsApp":

i) If the users opt for completely deleting "WhatsApp" account before 25.09.2016, the information/data/details of such users should be deleted completely from "WhatsApp" servers and the same shall not be shared with the "Facebook" or any one of its group companies.

ii) So far as the users who opt to remain in "WhatsApp" are concerned, the existing information/data/details of such users upto 25.09.2016 shall not be shared with "Facebook" or any one of its group companies.

iii) The respondent Nos.1 and 5 shall consider the issues regarding the functioning of the Internet Messaging Applications like "WhatsApp" and take an appropriate decision at the earliest as to whether it is feasible to bring the same under the statutory regulatory framework."

5. The above judgment has been challenged by the petitioner in the referred petition before the Supreme Court in SLP(C) No.804/2017, however, no interim order has been passed therein and the petition remains pending for adjudication.

6. On 4th January, 2021, WhatsApp announced that it was updating the Terms of Service and Privacy Policy (hereinafter referred to as 2021 Update').

7. It is claimed by WhatsApp that the 2021 Update does not in any manner negate the choice of the user made under the 2016 Update and that it is applicable only to the users who had 'opted-in' to the 2016 Update as also the users who joined WhatsApp services after the 2016 Update agreeing to those terms. It is further asserted that the 2021 Update is aimed at providing users with further transparency about how WhatsApp collects, uses and shares data and to inform the users about how optional business messaging features work when certain business messaging features become available to them. It is further asserted that 2021 Update does not expand WhatsApp's