SC comes down heavily on WhatsApp and Meta over ‘take it or leave it’ privacy policy

Today, the Supreme Court slammed WhatsApp and its parent company Meta Platforms over their data-sharing practices while hearing their appeal against a recent order of the National Company Law Appellate Tribunal (NCLAT). The Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V.M. Pancholi made it clear that the appeal would be dismissed if the companies failed to file an undertaking stating that they would not share user data.

In 2024, the Competition Commission of India (CCI) had imposed a joint penalty of Rs. 213 crores on WhatsApp and Meta for anti-competitive practices in relation to its 2021 privacy policy. The policy requires users to accept data sharing as a condition for continued use of the platform.

In 2025, the NCLAT partially upheld this order, concurring with the CCI that the policy violated Section 4(2)(a)(i) of the Competition Act, 2002, which prohibits abuse of market dominance. However, the CCI’s five-year ban on WhatsApp was not imposed. The CCI has also filed a cross-appeal against the same order.

Today’s proceedings

At the outset, CJI Surya Kant remarked, “You cannot play with the right of privacy of this country in the name of data sharing.”

Senior Advocates Mukul Rohatgi and Akhil Sibal appeared for Meta and WhatsApp. They argued that not all user data is shared and that WhatsApp’s end-to-end encryption prevents contents of messages from being read or accessed by the platform. Rohatgi also relied on the enactment of the Digital Personal Data Protection Act, 2023 to submit that a statutory framework is now in place. Justice Bagchi pointed out that the data protection law is not yet in force. It will come into force only in 2027.

Seemingly unconvinced, the Chief remarked, “You are making a mockery of the Constitution of this country. We will dismiss it right away.” Describing the policy as “a decent way of committing theft of private information,” the Bench observed that WhatsApp’s consent model was effectively a “take it or leave it” arrangement. It questioned whether such a framework could ever amount to genuine consent. Pointing to the complex language used, CJI Surya Kant asked how an ordinary user was expected to understand it at all. “Ask your domestic help in your house,” he said, “will they be able to understand this position?”

Justice Bagchi asked how users are expected to be aware of their right to opt out, noting that merely placing information in a newspaper could not amount to informed consent. He said the Bench was concerned with behavioural tendencies of users and the use of data for online advertising. He noted that while WhatsApp claimed encryption, the value lay in the data footprints left behind by users.

When WhatsApp and Meta argued that the service was free, the Bench responded that this did not address the Court’s concern. “You know your commercial interest and you also know how you have made consumers addicted to the app. Everybody uses it,” the CJI said.

On the issue of targeted advertising CJI Surya Kant said that even something as routine as a doctor sending a prescription could result in targeted advertisements appearing within minutes. Rohatgi responded that WhatsApp could not read such exchanges, but Justice Bagchi observed that courts across jurisdictions would have to subject such claims to a more intensive scrutiny.

Senior Advocate Samar Bansal, appearing for the CCI, submitted that Meta’s revenue was driven almost entirely by advertising. “We are the products,” he said, referring to users. CJI Surya Kant responded that there was nothing inherently wrong in earning legitimate income as long as it is not at the cost of fundamental rights.

The Bench made it clear that it expected assurance from the companies in the form of an undertaking.

Rohatgi sought permission to place a brief affidavit on record in order to explain WhatsApp’s data practices. Taking note of the request, the Court listed the matter for 9 February. On a joint request by parties, the Union was impleaded as a party and permitted to file its counter-affidavit.

Background

While the present round of litigation was triggered by the 2021 policy in particular, there is a second, broader challenge to WhatsApp’s data-sharing practices that is pending before the Court. The focus of that matter was the company’s 2016 policy update which permitted sharing of user data with Facebook and its group companies which had acquired WhatsApp in 2014.

In April 2017, the Supreme Court referred the matter to a Constitution Bench, flagging questions on informed consent and the right to privacy.