‘You opt out of the country’: SC slams WhatsApp, Meta over its monopoly and forced data sharing policy

The CCI too has filed an appeal against the NCLAT order allowing Meta and WhatsApp to share users’ data for advertising purposes.

At the outset, Senior Advocates Mukul Rohatgi and Akhil Sibal, appearing for Meta and WhatsApp respectively, said the penalty had been deposited.

The bench then directed that the amount shall not be allowed to be withdrawn until further orders. Also taking a stern view of the data sharing policy, the court went on to add that WhatApp is directed not to share, but stopped short after the counsel said the NCLAT had allowed them to share.

The bench then asked the counsel about the data sharing policy of the companies.

‘Like deal between lion and lamb’

The CJI asked, “What is the choice with the customer? Because you have now complete monopoly in the market and you will say I am giving a choice. The choice is like the agreement between lion and lamb, that either you walk out of WhatsApp facility or we share your data. What should we allow?”

The CJI added that it will pass directions unless the companies give an undertaking that the data will not be shared till the matter is finally decided. “The choice is very simple. Will you give an undertaking or we are issuing directions… Or we dismiss it right now. You have made mockery of the constitutionalism of this country.”

Sibal said the NCLAT judgment sets aside the ban on data sharing. “The order of December 15, 2025 says that data sharing will only be with the consent of the user”.

The CJI said, “We will not allow you to share a single word of your data. It must be very clear. If you are willing to give an affidavit undertaking of your management, then its fine. Otherwise, we will dismiss it. No question of sharing data. How can you play with the right of privacy of the people like this?”

Forced to depend on WhatsApp due to ‘monopoly’

CJI Kant added, “You (WhatsApp) have been bought by Facebook. Tomorrow someone else will buy and he will transfer the entire data.”

Sibal said that it is done only with the consent of the consumer and there is an opt out option. But the CJI asked, “What do you mean by opt out? Then opt out is you opt out of the country. You withdraw your facilities from here.” The CJI reiterated that people are now forced to depend on WhatsApp “because you have created monopoly”.

Intervening, Solicitor General Tushar Mehta who was present in the court said, “Our privacy data, our personal data is not only sold, it is commercially exploited. We feel we are consumers, (but) we are products.”

Agreeing, the CJI said, besides the danger of compromising with the right of privacy “which is so zealously guarded in this country, then that data is exploited purely for commercial consideration.”

Questioning the submission that people have been given an option, the CJI asked how would a poor street vendor understand the terms and conditions. “The kind of language you use, very cleverly crafted language, even some of us will not understand that language,” he said.

‘Examine from commoner’s perspective’

CJI Kant said, “Every such condition must be examined from the perspective of a common consumer in this country. How many people will understand the implication of the conditions which you impose? Where is the question of opt out? Because people do not understand that complication.”

He added, “Please show in you mobile or my mobile how this opt out business operates. Nobody will be able to understand it. And by now we do not how millions of data you must have (shared). This amounts to in a way, it’s a decent way of committing theft of private information. We will not allow it to happen unless at the time of final hearing, you convince us that you belong to some other world that you are entitled to do it. You will have to give an undertaking, otherwise we are going to impose very, very strict conditions.”

Justice Bagchi said, “We are examining a player who is held to be a dominant player in the…field imposing conditions which appear to be blatantly unfavourable to the user.”

He added, “It is not that the concurrent findings (of CCI) have been interfered by NCLAT. The remedy has been tweaked to a certain extent that the sharing for online advertising business, embargo for five years has been lifted. The question the CJI has been repeatedly flagging is, if this condition is lifted, the other conditions are basically eyewash.”

Referring to submissions that users can opt out, Justice Bagchi asked, “How will the users know the right to opt out or would be aware that there is a realistic decision-making position for them in this option…”.

Rohatgi said the top court had refused to stay the sharing on an earlier occasion and asked it to issue newspaper advertisements in all languages, which had been complied with.

Justice Bagchi said, “You say that you put up some newspaper advertisements. Who reads? Let us see the option and the situation between the user and this platform. This platform every alternate day would send messages when it comes to questions of sharing. When it comes to information to opting out, it would be on a newspaper. And how many do you expect will read that disclosure in the newspaper?”

The CJI, while stating that the services get disconnected when the user disallows data sharing, said, “WhatsApp is here for what? You are not here to collect the data and to sell it or share it. You are here to provide messaging communication services.”

On ‘hidden charges’

Justice Bagchi also referred to “hidden charges”. “Every silo of data with regard to an individual, irrespective of privacy has a value. The Act only addresses the privacy. We would like to examine what is the rent sharing of data…We are not concerned about privacy. We are concerned how our behavioural tendencies and trends, they can be utilised, monetised and thereby your parent company can leverage it for the purpose of an advantage on online advertising.”

“You will target beyond that advertising. And when you see these two agencies, one a parent, one a subsidiary, the subsidiary is the messaging and you only hinge your issue on privacy, we would like you to examine also the data value, the data value of the footprints of your user being shared your Meta platform and the Meta platform thereby having a targeted advertising…,” he added.

The court finally allowed the companies to file affidavits explaining their position and also asked the CCI to suggest conditions which it thinks need to be put in place. The bench will now hear it on February 9 on the need for interim directions.