‘You Cannot Trade Indians’ Privacy’: SC Comes Down Hard on Meta, WhatsApp

New Delhi: The Supreme Court on Tuesday delivered a stinging rebuke to Meta Platforms and WhatsApp LLC, signalling that it would not tolerate the commercial exploitation of Indian users’ personal data under the guise of consent or corporate policy.

Hearing appeals filed by Meta and WhatsApp against a ₹213.14 crore penalty imposed by the Competition Commission of India (CCI), the Court made it clear that the right to privacy of Indian citizens could not be subordinated to the business models of global technology giants.

A Bench led by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and Vipul Pancholi, questioned the very foundation of WhatsApp’s 2021 privacy policy, repeatedly highlighting the power imbalance between a dominant digital platform and its users.

‘What Choice Do Users Really Have?’

At the heart of the dispute is WhatsApp’s claim that users were offered a choice — to accept its updated privacy policy or opt out. The Court appeared unconvinced.

“You have a complete monopoly,” CJI Surya Kant observed, sharply rejecting the argument of user consent. “What kind of choice is this? Either accept the policy or walk away from the platform. That is not choice.”

The Chief Justice went so far as to begin dictating an interim order restraining WhatsApp and Meta from sharing any user data, prompting senior advocates Mukul Rohatgi and Akhil Sibal — appearing for Meta and WhatsApp respectively — to intervene. They argued that the National Company Law Appellate Tribunal (NCLAT) had already ruled in their favour on data sharing for advertising purposes, a claim contested by the CCI.

‘A Decent Way of Committing Theft’

The Court’s strongest remarks were reserved for the language and accessibility of WhatsApp’s privacy policy. Calling it “cleverly drafted” and opaque, the CJI questioned whether ordinary citizens could realistically understand what they were consenting to.

“A poor woman selling fruits on the street — will she understand your policy?” he asked. “Even some of us may not fully understand it. This is a decent way of committing theft of private information, and we will not allow it.”

The Bench repeatedly emphasised the vulnerability of what it described as “silent customers” — users who are unorganised, digitally dependent, and unaware of how their data is processed or monetised.

“How will someone in a remote village in Bihar or Tamil Nadu understand these terms?” the CJI asked, asserting that constitutional rights could not be diluted simply because data was shared online.

Court Questions Data Monetisation Beyond Privacy

The hearing expanded beyond privacy into the economic value of data itself. Justice Joymalya Bagchi raised pointed questions about how user data — even if anonymised or non-private — is commercially exploited and leveraged for targeted advertising.

“Every data footprint has value,” Justice Bagchi said, noting that while India’s Digital Personal Data Protection Act (DPDP), 2023 addresses privacy concerns, it does not account for the commercial valuation or “rent” of personal data.

The Bench expressed concern over how Meta could gain a competitive edge in online advertising by analysing behavioural patterns derived from WhatsApp usage, even while claiming that messages themselves remain end-to-end encrypted.

Solicitor General Tushar Mehta supported this line of concern, stating that personal data was not merely collected but actively monetised. Comparisons were drawn with European Union regulations, where data is treated as an economic asset and subject to valuation and taxation.

‘Advertising Is Fine — At What Cost?’

Senior Advocate Samar Bansal, appearing for the CCI, underscored that Meta’s business model is fundamentally advertising-driven. “We are the product,” he said, arguing that the so-called free services are financed by data extraction and commercial targeting.

While acknowledging the legitimacy of earning profits, the Court cautioned that corporate revenue could not come at the expense of constitutional protections.

“There is nothing wrong with legitimate income,” the CJI remarked, “but not at the cost of the rights of Indians.”

Undertakings Demanded, Matter Adjourned

Faced with sustained judicial scrutiny, Meta assured the Court that it would file a detailed affidavit explaining its data practices. The Bench agreed to adjourn the matter till next Monday, making it clear that the hearing would proceed only after examining those assurances.

At the suggestion of the CCI, the Ministry of Electronics and Information Technology was also impleaded in the case, signalling broader implications for India’s digital governance framework.

Background of the Dispute

The case stems from a November 2024 order of the Competition Commission of India, which held that WhatsApp abused its dominant position in India’s OTT messaging market by enforcing a “take-it-or-leave-it” privacy policy. The regulator found that users were compelled to accept expanded data sharing with Meta entities as a condition for continued access to WhatsApp.

While the NCLAT later set aside certain restrictions on advertising-related data sharing, it upheld the ₹213.14 crore penalty imposed on Meta Platforms. Both sides have now approached the Supreme Court, setting the stage for what could become a landmark ruling on data rights, digital dominance, and the economics of user information in India.

As the Bench made clear on Tuesday, the outcome will not merely determine corporate liability — it may define the limits of how far Big Tech can go in monetising the digital lives of Indians.

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