‘Can’t play with Indians’ data’: SC raps Meta, WhatsApp over privacy policy

The Supreme Court on Tuesday made strong remarks against Meta Platforms and WhatsApp LLC over their 2021 privacy policy, saying it would not allow the exploitation of Indian users’ personal data.

The court was hearing appeals filed by Meta Platforms and WhatsApp challenging a National Company Law Appellate Tribunal (NCLAT) order that upheld a ₹213.14 crore penalty imposed by the Competition Commission of India (CCI) for violations linked to WhatsApp’s 2021 privacy policy.

The CCI has also filed a cross-appeal challenging the NCLAT order to the extent it allowed Meta and WhatsApp to share user data for advertising purposes after holding that there was no abuse of dominance.

A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi heard the matter. Senior advocates Mukul Rohatgi and Akhil Sibal appeared for Meta Platforms and WhatsApp respectively and informed the court that the penalty amount had already been deposited.

While agreeing to admit the appeals, the bench raised serious concerns over the privacy implications of WhatsApp’s policy.
“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,” Chief Justice Kant said, adding that WhatsApp enjoyed a monopolistic position, leaving users with no real choice.

“You are making a mockery of constitutionalism. How can you play with the right to privacy like this?” the CJI asked, observing that consumers had little option but to accept the policy.

When Sibal argued that users had an option to opt out, the CJI questioned the effectiveness of such consent. “Will a poor woman selling fruits on the street understand your terms? Will domestic help understand them? This is a decent way of committing theft of private information,” he said.

The Chief Justice said the court would not proceed with the matter unless Meta and WhatsApp gave an undertaking that users’ personal data would not be misused. Rohatgi responded that a Constitution Bench was already examining WhatsApp’s privacy policy and that an undertaking had been given in those proceedings that no user would be barred from the platform for refusing to accept the 2021 policy.

Rohatgi also referred to the Digital Personal Data Protection Act, 2023, which allows time till May 2027 for compliance. Justice Bagchi, however, pointed out that the law 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 user data was monetised, including how behavioural patterns were analysed to enable targeted advertising.
“Every silo of data has a value. We want to see how this data is rented out and monetised,” Justice Bagchi said.

Chief Justice Kant cited personal experience, noting that even casual WhatsApp conversations appeared to trigger targeted advertisements. In response, Rohatgi and Sibal reiterated that WhatsApp messages are end-to-end encrypted and cannot be accessed by the platform.

Justice Bagchi observed that unlike European Union regulations, India’s data protection framework does not yet assign a clear economic value to shared data. Mehta added that in the EU, such data is assigned a notional value and taxed.

Senior advocate Samar Bansal, appearing for the CCI, said the regulator had examined these issues in detail before imposing the penalty. “Their entire revenue model is advertising. We are the product,” he submitted.

Facing sustained questioning from the bench, Rohatgi said Meta would file a detailed affidavit explaining its data practices. Accepting the request, the court adjourned the matter to next Monday and impleaded the Ministry of Electronics and Information Technology as a party to the proceedings.

The dispute arises from a November 2024 order of the Competition Commission of India examining WhatsApp’s 2021 privacy policy update. The regulator held that WhatsApp, which enjoys a dominant position in India’s OTT messaging market, imposed a take-it-or-leave-it framework on users, denying them meaningful choice.

The CCI found that WhatsApp made continued access to its messaging service conditional on users agreeing to expanded data sharing with other Meta group entities, amounting to abuse of dominance under the Competition Act, 2002. It imposed a ₹213.14 crore penalty and issued remedial directions, including prohibiting mandatory data sharing and requiring clearer opt-in and opt-out mechanisms.

Meta Platforms and WhatsApp challenged the order before the NCLAT in January 2025. In November 2025, the NCLAT set aside certain restrictions on advertising-related data sharing and overturned the finding of unlawful leveraging of dominance, but upheld the monetary penalty.
(With LiveLaw inputs.)