You can't play with right to privacy of this country: Supreme Court slams WhatsApp, Meta over privacy policy

The Supreme Court on Tuesday strongly criticised WhatsApp and Meta (which owns WhatsApp) for the messaging platform's 'take it or leave it' privacy policy, adding that the policy appears to enable data theft [WhatsApp, Meta Vs Competition Commission of India]..A Bench comprising Chief Justice of India Surya Kant, Justices Joymalya Bagchi and Vipul Pancholi also flagged the unavailability of any clear option for a WhatsApp user to opt out of such a privacy policy."Where is the question of opt out? Show me in your mobile. This is a decent way of committing theft of private information! You know your commercial interest and you also know how you have made consumers addicted to the app. Everybody uses it. If the users have a right to opt-out, how will the users know this right exists? Let us see the option and the situation with the user. When it comes to opting out, the information is in a newspaper. How will a person know?" CJI Kant asked..Where is the question of opt out? Show me in your mobile. This is a decent way of committing theft of private information!Supreme Court.The Court was hearing WhatsApp's appeals against a National Company Law Appellate Tribunal (NCLAT) judgment which had upheld the ₹213.14 crore penalty imposed by the Competition Commission of India (CCI) on the messaging platform over its 2021 privacy policy.The Court today warned that WhatsApp cannot expect to get away with violating the right to privacy of Indian users."You can't play with the right of privacy of this country, in the name of data sharing. You are making a mockery of the constitutionalism of this country. How can you play with the right to privacy of people like this? People pay you for this. Consumer has no choice, you have created a monopoly!" CJI Kant told WhatsApp and Meta today..The Bench eventually suggested that WhatsApp file an affidavit explaining its privacy policy and how data sharing activities under it would work."A person sitting in rural Tamil Nadu, who only understands their language, how will they understand your terms? Give an undertaking, then we will hear the case on merits," CJI Kant had observed.The hearing also veered towards how WhatsApp users are often faced with targeted advertising without any express consent for the same, raising concerns about how private data is shared."Their entire revenue comes from advertising. We are the products milords. It (WhatsApp) is free because of that," CCI's counsel Samar Bansal submitted."There is nothing wrong if you are making legitimate income out of it," CJI Kant said."May I file a one-page affidavit to apprise the court what we are doing? The Court may consider it and then take a call," Senior Advocate Mukul Rohatgi, appearing for WhatsApp, offered. .You can't play with the right of privacy of this country.Supreme Court.The Court proceeded to adjourn the hearing till February 9 after impleading the Central government as an additional party."For the purpose of issuing interim directions, post the matter for next Monday. On the joint request made by senior counsel, the Union of India is impleaded as respondents. Union may also file its counter affidavit," the Court said. .In January 2021, WhatsApp informed users about updates to its terms of service and privacy policy, effective from February 8, 2021. The notification stated that users must accept the new terms to continue using the platform. Unlike the previous privacy policy from August 25, 2016, which allowed users to opt out of data sharing with Facebook, the updated policy made data sharing with Meta mandatory.The CCI launched an investigation and, in November 2024, held that WhatsApp’s 2021 privacy policy update amounted to abuse of dominance under the Competition Act, 2002. It directed WhatsApp not to share data collected on its platforms with Meta or its products for five (5) years.This order was challenged in NCLAT by WhatsApp and Meta. In November 2025, the NCLAT partly ruled in favour of WhatsApp by setting aside the CCI’s finding that Meta had leveraged a dominant position in the OTT messaging market to protect its position in online display advertising.However, NCLAT upheld the ₹213.14 crore penalty imposed by the competition regulator. Subsequently, on a clarification application moved by the CCI, NCLAT restored the regulator’s user-choice safeguards and granted WhatsApp three months’ time to comply with the remedial directions.WhatsApp and Meta then approached the Supreme Court to challenge the penalty imposed on them..During today's hearing, the CJI quizzed WhatsApp's counsel on whether its privacy policy is as transparent as it claimed."A street vendor, how will she understand these terms and conditions? Can you imagine the kind of language you use! Every such condition must be examined! ... Our simple query to you, ask your domestic help in your house. Will they be able to understand this position? How does the substantial part of the country going to understand your terms and conditions?" he asked..Counsel appearing for WhatsApp and Meta replied that only some data is shared, adding that India now has a data protection law in place. Justice Bagchi, however, pointed out that this new law is yet to be enforced.CJI Kant went on to remark that WhatsApp's stated purpose is only to provide messaging services, and not data sales."WhatsApp is not here to collect data and sell. You are here to provide messaging and communication services," he said."It's (the messaging service) free of charge," WhatsApp's counsel pointed out..Justice Bagchi, meanwhile, observed that the concern is about the larger behavioural patterns that WhatsApp and Meta have been showing."DPDP Act only speaks about privacy. We are concerned behavioural tendencies. You are using the data for purpose of online advertising," he said."We can show you numerous examples. You ask your doctor for a medicines, once he sends the prescription. You will see what messages come to you in 5 minutes," CJI Kant added."WhatsApp is encrypted. What is sent between two persons cannot even be read by WhatsApp," rebutted Senior Advocate Mukul Rohatgi."If your doctor simply writes takes crocin, how do we get targeted ads?" CJI Kant persisted."WhatsApp can't read exchanges milord," Rohatgi maintained..Solicitor General of India (SG) Tushar Mehta represented the Central government and echoed the concerns expressed by the Court today."Our personal data is not only sold, it is also commercially exploited ... The data which is available in my personal life has a monetary value," he said..Senior Advocate Amit Sibal represented Meta. Senior Advocate Arun Kathpalia also represented WhatsApp. .Senior Advocate Niranjan Reddy appeared for Internet Freedom Foundation.[Live Coverage].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.