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The Facebook-owned messaging app will file an appeal later this week to be heard by a two-judge bench

Given the surge in Covid cases, the Delhi High Court said earlier this month that it will only hear urgent matters

Last week, the Delhi High Court had allowed CCI to conduct an antitrust probe into the WhatsApp privacy policy

WhatsApp filed an appeal on Friday (April 30) morning against a Delhi High Court judgement that rejected a plea to overturn an order by the Competition Commission of India to investigate allegations of abuse of dominance against the messaging platform’s new privacy policy. 

According to a source close to the developments who spoke to Inc42 on the condition of anonymity, the Facebook-owned messaging app has filed an appeal later this week to be heard by a two-judge bench which could potentially overturn the earlier ruling.  

Salman Waris, a partner at technology law firm TechLegis, however, said “A high court bench does not generally treat a judgement made by another bench adversely. There is very little chance that the previous order will be overturned.” Waris also pointed out that the case is not ‘extremely urgent’ which could mean it may not be heard soon. Given the surge in Covid cases, the high court said earlier this month that it will only hear urgent matters. The high court registrar is expected to decide by early next week if the appeal will be entertained on an urgent basis.

Sanjay Hegde, a senior advocate at the Supreme Court of India told Inc42 that for the court urgent cases are those that are ‘a matter of life and death’. As such, WhatsApp is unlikely to get a hearing anytime soon. “Every petitioner thinks that his case is the most urgent. The urgency when taken at a personal level or corporate level may seem to justify an urgent hearing. But specific categories of matters including death sentences, evictions from homes, or people likely to lose their jobs — where unalterable consequences might ensue, only those matters would merit an urgent hearing,” he added.

Facebook and WhatsApp had earlier petitioned the court to block the probe as several cases related to the privacy policy were pending before the higher courts. However, Justice Navin Chawla reportedly said that this rationale doesn’t hold and the competition watchdog cannot be bound by the outcome of those cases, before commencing its own investigation.

In an earlier hearing, senior counsel Harish Salve, representing WhatsApp in a hearing on April 13, had said that the matter is already pending before the Supreme Court and the investigation taken up by CCI is just a “headline-grabbing endeavour”. He added that WhatsApp cannot ‘see’ any user conversations and all the conversations are protected by end-to-end encryption. Besides this, all the messages are deleted from the company’s servers after they are delivered.

In its March order, the CCI had said that it would conclude its investigation within 60 days.  The competition regulator had said that WhatsApp’s updated privacy policy is ‘exclusionary and exploitative’ and it would enable WhatsApp to abuse its dominant position in India. The privacy policy will go into effect from May 15, 2021.