The vacation bench headed by Justice Bhambhani, in an order released on Wednesday, said that there was no doubt that the issuance of notice by the DG is a step in furtherance of the investigation commenced pursuant to CCI order of March 24, which has been challenged before the division bench.

Declining to stay the Competition Commission of India (CCI)’s ongoing probe into WhatsApp’s latest privacy policy, the Delhi High Court, however, has asked the commission’s Director General (DG) to “bear in mind” that investigation against the Facebook-owned company is under judicial consideration before a division bench of the high court.

WhatsApp and Facebook have approached the high court against the March 24 CCI order in which the competition regulator came to a prima facie conclusion that the conduct of WhatsApp in “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 unfair to the users. The CCI had ordered the DG to complete the investigation within 60 days. On Monday, the companies moved a vacation bench of the high court seeking a stay on the probe after they were issued a notice by the DG on June 4.

Additional Solicitor General Aman Lekhi argued before the court that the notice issued by the DG on June 4 is a continuation of the CCI order passed on March 24. Lekhi also told the vacation bench that the preparation of the report would not be completed at least before the next date of hearing before the Roster Division Bench, which is July 9.

Senior Advocate Harish Salve, representing WhatsApp, argued that while the matter is pending before the division bench, the issuance of notice by the DG “smacks of overreach” and submitted that the demand for submission of information within 15 days indicates that the DG may take action against the Facebook-owned company.

However, the vacation bench headed by Justice Bhambhani, in an order released on Wednesday, said that there was no doubt that the issuance of notice by the DG is a step in furtherance of the investigation commenced pursuant to CCI order of March 24, which has been challenged before the division bench.

“However, we find that an application seeking stay of further steps in the investigation already stands filed … on which notice has already been issued to the DG; in which no interim relief was given by the Division Bench on 06.05.2021 or thereafter; and which is already listed before the Division Bench (Roster Bench) for further consideration on 09.07.2021,” said the court, adding it does not consider appropriate to stay the operation of the notice issued by DG at this stage.

However, while taking note of Lekhi’s statement, the court in the order also said, “we would only urge the DG to bear in mind that investigation against the appellant is under judicial consideration before a Division Bench of this court; and we direct that the matter be listed before the Roster Division Bench on 09.07.2021, the date already fixed”.

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