Key Points
The Supreme Court strongly criticised the 2021 WhatsApp privacy policy, calling the opt out mechanism unclear and consent “manufactured” under a monopoly like situation.
The Bench said it may restrain data sharing unless Meta and WhatsApp give an undertaking, and will pass an interim order on 9 February 2026.
The case arises from appeals against the NCLAT order that upheld a ₹213.14 crore penalty imposed by the Competition Commission of India on Meta.
The Supreme Court, on 3 February 2026, took strong exception to the “take it or leave it” structure of WhatsApp’s 2021 privacy policy, questioning whether users’ consent to data sharing could be considered voluntary. The remarks were made while hearing appeals by Meta Platforms and WhatsApp against a National Company Law Appellate Tribunal (NCLAT) judgement which had upheld a penalty of ₹213.14 crore imposed on the company by the Competition Commission of India (CCI) for abuse of a dominant position.
A three judge Bench, led by Chief Justice of India (CJI) Surya Kant and comprising Justices Joymalya Bagchi and Vipul M Pancholi, said the court would pass an interim order in the matter on 9 February 2026 and directed that the Union government be added as a party.
The Bench repeatedly stressed that the right to privacy is constitutionally protected and cannot be diluted through complex policy language. “You can’t play with the right of privacy of this country in the name of data sharing,” CJI Kant said, warning that the court would not permit the sharing of “a single word” of user data without safeguards. He described the policy framework as “a decent way of committing theft of private information”.
The court questioned the claim that users had a meaningful choice. Referring to the companies’ argument that there was an opt-out option, the CJI asked how an ordinary person, including someone in a remote village, would understand “very cleverly drafted” terms. “What do you mean by opt-out? Because you have created a monopoly in the market, there is no choice for the consumer,” he observed. He added that silent users were being commercially exploited and that consent obtained in such circumstances appeared to be “manufactured consent”.
In a personal anecdote to illustrate targeted advertising concerns, CJI Kant said that if a person discussed a medical issue with a doctor on WhatsApp, advertisements related to medicines began appearing shortly after. The court said it wanted to examine how behavioural data and user trends were being monetised, and how data “footprints” were shared within the Meta ecosystem for advertising advantage.
Justice Bagchi noted that while privacy law focuses on protection of personal data, the commercial value of user data and how it is “rented out” also required scrutiny. He said the Bench was concerned about how user behaviour was analysed and leveraged for dominance in online advertising markets. Solicitor General Tushar Mehta told the court that personal data was not only sold but “commercially exploited”.
Senior Advocates Mukul Rohatgi and Akhil Sibal, appearing for Meta and WhatsApp, submitted that the penalty imposed by the CCI had already been deposited. They argued that the NCLAT had set aside certain restrictions on data sharing and that messages on WhatsApp are end-to-end encrypted. They also referred to earlier proceedings where an undertaking had been given that users would not be barred for not accepting the 2021 policy.
The court, however, indicated that it was inclined to consider interim directions restraining data sharing unless a formal undertaking was filed. It said commercial interests of companies could not override constitutional rights of citizens. “There is nothing wrong in earning legitimate income, but it cannot be at the cost of the rights of Indians,” the CJI said.
The dispute traces back to a November 2024 order of the CCI, which held that WhatsApp had abused its dominant position by making continued access to its messaging service conditional on acceptance of expanded data sharing with other Meta entities. The regulator imposed a penalty of ₹213.14 crore and issued directions aimed at restoring user choice, including clearer opt-in and opt-out mechanisms and limits on tying service access to data sharing.
Meta and WhatsApp challenged that order before NCLAT, which in November 2025 set aside certain findings related to advertising data sharing but upheld the monetary penalty. Both companies then approached the Supreme Court. The CCI has also filed a cross appeal on the issue of data sharing for advertising.
During the hearing, the Bench ordered that the Ministry of Electronics and Information Technology be made party to the petitions and permitted the Union government to file its response. It allowed the companies to file detailed affidavits explaining their data practices and adjourned the matter to 9 February 2026 for consideration of interim relief.
The court’s observations signal a broader judicial examination of how digital platforms obtain consent, monetise data, and balance commercial models with constitutional guarantees. The forthcoming interim order is expected to clarify the immediate limits, if any, on data sharing under WhatsApp’s 2021 policy.
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