The Supreme Court on Tuesday delivered scathing observations against Meta Platforms Inc. and WhatsApp LLC over their 2021 privacy policy, asserting that it would not permit global technology companies to exploit the personal data of Indian citizens under the guise of consent.
A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi was hearing appeals filed by Meta Platforms and WhatsApp challenging a judgment of the National Company Law Appellate Tribunal (NCLAT), which had upheld a Rs 213.14 crore penalty imposed by the Competition Commission of India (CCI) for abuse of dominance linked to WhatsApp’s updated privacy policy.
The court was also seized of a cross-appeal by the CCI challenging the NCLAT order insofar as it permitted Meta and WhatsApp to share user data for advertising purposes after holding that there was no abuse of dominance.
While agreeing to admit the appeals, Chief Justice Surya Kant made it clear that the court’s scrutiny would focus squarely on privacy and informed consent. “We will not allow you to share even a single piece of information. You cannot play with the rights of the people of this country. Let a clear message go out,” the Chief Justice said.
The bench repeatedly flagged concerns over WhatsApp’s market dominance, observing that users have no meaningful choice. “You are making a mockery of the constitutionalism of this country. How can you play with the right to privacy like this? The consumer has no choice. You have created a monopoly,” the Chief Justice remarked, warning that the court could dismiss the appeals outright if privacy violations persisted.
Senior Advocate Mukul Rohatgi, appearing for Meta Platforms, and Senior Advocate Akhil Sibal, representing WhatsApp, informed the court that the penalty amount had already been deposited. Sibal submitted that users had the option to opt out of the 2021 policy, a claim that drew sharp rebuttal from the bench.
Questioning the efficacy of such opt-out mechanisms, the Chief Justice asked whether a street vendor or a domestic worker would realistically understand the implications of the policy. “A poor woman selling fruits on the street will she understand your terms? Will your domestic help understand this? This is a decent way of committing theft of private information, and we will not allow you to use it,” the CJI said.
The court further indicated that unless Meta and WhatsApp furnished an undertaking that users’ personal data would not be used, it would not proceed to hear the appeals. Rohatgi responded by pointing out that a Constitution Bench was already examining WhatsApp’s privacy policy and that, in those proceedings, an undertaking had been given that no user would be barred from WhatsApp for refusing to accept the 2021 policy.
Rohatgi also relied on the Digital Personal Data Protection Act, 2023, submitting that companies had time until May 2027 to align with the new regulatory framework. Justice Bagchi, however, noted that the Act was yet to be brought into force, cautioning against reliance on future compliance.
Solicitor General of India Tushar Mehta intervened to submit that personal data was not merely collected but commercially exploited. Justice Bagchi echoed these concerns, stating that the court intended to examine how user data was rented out, monetised and used for targeted advertising after analysing behavioural patterns.
“Every silo of data has value. We want to see how this value is extracted and shared,” Justice Bagchi observed, adding that the DPDP Act does not adequately address the valuation of data, unlike European Union regulations.
Chief Justice Surya Kant also referred to personal experience, noting that health-related advertisements appeared shortly after private WhatsApp conversations. In response, Rohatgi and Sibal maintained that WhatsApp messages are end-to-end encrypted and inaccessible even to the platform itself.
Senior Advocate Samar Bansal, appearing for the CCI, submitted that advertising revenue was the backbone of Meta’s business model. “We are the product, milords. It is free because of that,” he argued.
Facing sustained questioning, Rohatgi sought time to file a detailed affidavit explaining Meta’s data practices. Accepting the request, the court adjourned the matter to next Monday, granting Meta and WhatsApp time to place their affidavits on record.
