Competition Commission jurisdiction over WhatsApp update upheld despite parallel privacy proceedings and Facebook's inclusion in inquiry.

A Section 26(1) direction under the Competition Act is only a prima facie, non-adjudicatory step and does not finally determine rights or obligations. Pending constitutional or privacy proceedings concerning WhatsApp's 2021 update did not bar the Competition Commission from exercising its statutory jurisdiction to examine alleged abuse of dominance, unfair conditions, data-sharing terms, network effects, and the absence of meaningful opt-out. Facebook's inclusion in the enquiry was also upheld because the alleged competitive concern arose from user data sharing with Facebook companies, making its presence relevant to the investigation. The challenge to the investigation order therefore failed.

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Issues: (i) Whether the Competition Commission could direct investigation into WhatsApp's 2021 update notwithstanding pending proceedings concerning privacy and opt-out issues before other courts; (ii) Whether Facebook's impleadment in the investigation was impermissible.

Issue (i): Whether the Competition Commission could direct investigation into WhatsApp's 2021 update notwithstanding pending proceedings concerning privacy and opt-out issues before other courts.

Analysis: A direction under Section 26(1) of the Competition Act, 2002 is only a prima facie, administrative step for investigation and does not finally determine rights or obligations. The pendency of constitutional challenges to the same update did not divest the Competition Commission of its statutory jurisdiction. Unlike a case where another specialised regulator must first determine jurisdictional facts, the Commission was entitled to apply the Competition Act on the basis of the law then in force and examine whether the update, data-sharing terms, dominance, network effects, and lack of meaningful opt-out disclosed abuse of dominance and unfair conditions. The pending proceedings could not compel the Commission to keep its hands off its own jurisdiction.

Conclusion: The challenge to the investigation order on the ground of want of jurisdiction failed and the Commission was entitled to proceed.

Issue (ii): Whether Facebook's impleadment in the investigation was impermissible.

Analysis: The impugned order treated Facebook as integral to the alleged data-sharing arrangement under scrutiny. Since the alleged competitive concern arose from sharing of user data with Facebook companies, the presence of Facebook was relevant to the investigation and the Commission was entitled to include it in the enquiry.

Conclusion: The objection to Facebook's impleadment was rejected.

Final Conclusion: The petitions were found to be without merit, and the Commission's direction for investigation was allowed to stand.

Ratio Decidendi: A Section 26(1) direction is a non-adjudicatory prima facie measure, and the pendency of parallel proceedings on connected issues does not by itself bar the Competition Commission from exercising its statutory jurisdiction to investigate alleged anti-competitive conduct.

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