India’s Supreme Court Slams Meta, WhatsApp Over Forced Privacy Policy

The Supreme Court on Tuesday strongly criticised WhatsApp and its parent company Meta over the messaging platform’s 2021 'take it or leave it' privacy policy, saying it appeared to enable misuse of user data. The Bench, comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and Vipul Pancholi, highlighted the absence of a clear opt-out option for users, calling the policy a “decent way of committing theft of private information.”

 

The hearing was part of WhatsApp’s appeals against the National Company Law Appellate Tribunal (NCLAT) judgment, which had upheld a ₹213.14 crore penalty imposed by the Competition Commission of India (CCI) for abuse of dominance and coercive data-sharing practices with Meta.

 

CJI Kant questioned the messaging platform’s approach, asking how a common user, including those in rural areas or those who only speak regional languages, could understand its terms. "Where is the question of opt out? Show me in your mobile. Everybody uses it. If the users have a right to opt-out, how will they know this right exists? When it comes to opting out, the information is in a newspaper. How will a person know?" he said.

 

The Bench also expressed concern about WhatsApp’s use of personal data for advertising purposes, raising questions about transparency and informed consent. The CCI’s counsel highlighted that WhatsApp’s revenue model relies on user data, saying, "We are the products, milords. It (WhatsApp) is free because of that."

 

WhatsApp’s counsel argued that only some data is shared and stressed that messages remain encrypted. “WhatsApp is not here to collect data and sell. You are here to provide messaging and communication services,” CJI Kant countered. Justice Bagchi pointed out that the concern extends beyond legal compliance to the company’s behavioural tendencies in using user data.

 

The Court suggested that WhatsApp file an affidavit explaining its privacy policy and data-sharing activities. “A person sitting in rural Tamil Nadu, who only understands their language, how will they understand your terms? Give an undertaking, then we will hear the case on merits,” CJI Kant said.

The hearing also considered WhatsApp’s 2021 policy update, which required users to accept mandatory data sharing with Meta to continue using the platform, unlike the 2016 policy that allowed opting out. The CCI had ruled this amounted to abuse of dominance under the Competition Act, 2002, and barred WhatsApp from sharing user data with Meta for five years. NCLAT had partially ruled in WhatsApp’s favour but upheld the penalty.

 

The Supreme Court adjourned the case till February 9 after impleading the Union government as an additional party. The Court emphasised that Indian users’ right to privacy cannot be compromised under the guise of data sharing, and that platforms must ensure transparency and genuine consent.

 

Senior advocates Mukul Rohatgi and Arun Kathpalia appeared for WhatsApp, while Amit Sibal represented Meta. Solicitor General Tushar Mehta represented the Central government.