'What Is The User's Choice?' Supreme Court Questions WhatsApp's Privacy Policy In Appeal Against CCI Penalty

The Supreme Court of India on Tuesday warned Meta and WhatsApp that it would not allow the sharing of even “a single word” of user data with other Meta group companies, saying such practices cannot override citizens' right to privacy.

“We will not allow you to share a single word of your data. How can you play with the right of privacy of the people like this” the court said, describing the policy as “a decent way of committing theft of private information.”

The court was hearing appeals by Meta and WhatsApp against an order of the National Company Law Appellate Tribunal that upheld a ₹213 crore penalty imposed by the Competition Commission of India for abuse of dominance in the OTT messaging market.

The penalty relates to WhatsApp's policy permitting the sharing of user data with other Meta group entities for commercial and advertising purposes. A third appeal has been filed by the CCI.

A bench led by Chief Justice Surya Kant, with Justices Joymalya Bagchi and Vipul M. Pancholi, questioned Meta's claim that users had a meaningful choice.

“What is the choice?” the Chief Justice asked. “Either you walk out of WhatsApp or your data will be shared? We are not ready to buy this idea.”

Senior advocate Mukul Rohatgi, appearing for Meta and WhatsApp, told the court that three appeals were before it, two by Meta and WhatsApp and one by the CCI. He said the ₹213 crore penalty had already been deposited in full, subject to the outcome of the appeals. Recording this, the court directed that the amount shall not be withdrawn until further orders.

The bench rejected the argument that an opt-out mechanism protected user consent. The Chief Justice said the policy language was so complex that ordinary users would not understand it.

“Ask your domestic help at home. Will they understand this policy?” he asked, referring to street vendors, construction workers, and people in remote villages as “silent consumers” with no real awareness or voice.

Justice Bagchi questioned how users would even know about an opt-out option if it was communicated through newspaper advertisements. “Who reads newspaper ads?” he asked. He added that every cycle of data has economic value and said the court would examine how user behavior is monetized when data is shared across Meta's platforms.

Solicitor General of India Tushar Mehta also submitted that "our personal data is not only sold, but also commercially exploited."

The court also flagged concerns over sensitive communications, including exchanges between doctors and patients. “Any commercial venture cannot be at the cost of the rights of the people of this country,” the Chief Justice said.

At the end of the hearing, the court granted time for filing counter affidavits and posted the matter for consideration of interim directions next Monday.

Background

The dispute traces back to WhatsApp's announcement in January 2021 of revised Terms of Service and a new Privacy Policy. The update proposed expanded sharing of user data with other Meta group entities, particularly for business messaging and advertising-related purposes.

On March 24, 2021, the Competition Commission of India (CCI), acting suo motu and also taking note of complaints filed by individual users and civil society groups, formed a prima facie view that WhatsApp's conduct could amount to abuse of dominant position under Section 4 of the Competition Act.

CCI directed its Director General to carry out a detailed investigation into whether the policy update imposed unfair conditions on users and strengthened Meta's data advantage across markets. WhatsApp and its parent company Meta challenged the investigation before the Delhi High Court.

They argued that issues relating to data sharing and user consent fell within the domain of privacy law and that the competition regulator lacked jurisdiction. These objections were rejected.

Following the investigation, the CCI passed a final order on November 18, 2024, holding that WhatsApp had abused its dominant position. It imposed a penalty of Rs. 213.14 crores along with behavioral directions.

Aggrieved by the CCI's order, WhatsApp and Meta approached the National Company Law Appellate Tribunal. The NCLAT on November 4, 2025, held that the CCI was competent to examine the competition law implications of the privacy policy and rejected the contention that the matter was confined to data protection alone.