The Supreme Court on Tuesday delivered a stern warning to WhatsApp and its parent company Meta over the instant messaging platform’s data-sharing and privacy policies, stating that user data cannot be exploited for commercial purposes. Chief Justice of India Surya Kant cautioned the US firm, saying, “You can’t play with the privacy of our country, we will not allow you to share a single digit of our data.”
The court was hearing appeals filed by Meta Platforms and WhatsApp LLC against a National Company Law Appellate Tribunal (NCLAT) ruling that upheld a Rs 213.14 crore penalty imposed by the Competition Commission of India over WhatsApp’s 2021 privacy policy.
The Competition Commission of India also filed a cross-appeal challenging the NCLAT order that permitted Meta and WhatsApp to share user data for advertising, despite finding no abuse of dominance.
The matters were heard by a bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi. Senior Advocates Mukul Rohatgi and Akhil Sibal, appearing for Meta and WhatsApp respectively, informed the court that the penalty amount had already been deposited.
While agreeing to admit the appeals, Chief Justice of India Surya Kant expressed serious concerns over WhatsApp’s privacy policy, warning that the court would not permit the platform to share even a single piece of user information.
“We will not allow you to share even a single information, you cannot play with the rights of this country, let a clear message go...,” the Chief Justice said.
Observing that users have little choice due to WhatsApp’s dominant position, he added that the company had created a monopoly and was “making a mockery of constitutionalism” by undermining the right to privacy.
When senior advocate Akhil Sibal argued that users had the option to opt out of the policy, Chief Justice Surya Kant questioned how effective such consent really was.
“Will a poor woman selling fruits on the street understand your policy? Will your domestic help understand it? You may have collected data from millions of people. This is a decent way of committing theft of private information, and we will not allow it,” the Chief Justice said.
The Chief Justice also said the Court would not proceed unless WhatsApp and Meta gave an undertaking that users’ personal data would not be used.
Senior advocate Mukul Rohatgi responded that a Constitution Bench was already examining WhatsApp’s privacy policy and that an undertaking had been given there assuring no user would be barred for not accepting the 2021 policy.
He also cited the Digital Personal Data Protection Act, 2023, which allows time for compliance until May 2027, though Justice Joymalya Bagchi noted that the Act is yet to come into force.
Solicitor General Tushar Mehta submitted that personal data was not only being sold but also commercially exploited.
Justice Bagchi said the court would examine how WhatsApp “rents out” data and monetises users’ behavioural trends for targeted advertising, observing that every silo of data has commercial value.
Chief Justice Surya Kant echoed the concern, citing personal experience of receiving targeted ads shortly after health-related WhatsApp messages.
Rohatgi and senior advocate Akhil Sibal countered that WhatsApp messages are end-to-end encrypted and inaccessible even to the platform.
Justice Bagchi, however, pointed out that unlike EU regulations, the Digital Personal Data Protection (DPDP) Act does not address the commercial value of shared data.
Senior advocate Samar Bansal, appearing for the CCI, said the penalty was imposed after examining this very issue, arguing that users are effectively the product in an advertising-driven business model.
Facing sustained questioning, Rohatgi said Meta would file an affidavit explaining its data practices. The court accepted the proposal, adjourned the matter to next Monday, allowed Meta and WhatsApp to file affidavits, and impleaded the Ministry of Electronics and Information Technology as a party to the case.
