Supreme Court slams WhatsApp’s ‘take-it-or-leave-it’ policy

The Supreme Court expressed serious concern over WhatsApp’s 2021 privacy policy, calling it coercive and unfair, as it heard appeals against a Rs 213.14 crore CCI penalty. The court sought detailed explanations from Meta on data-sharing and user consent

New Delhi: The Supreme Court on Tuesday expressed serious concern over WhatsApp’s 2021 privacy policy and the sharing of user data by its parent company Meta Platforms, observing that the platform cannot be allowed to “play with the right to privacy” of Indian users.

The court’s remark came as a bench of Chief Justice of India (CJI) Surya Kant and justices Joymalya Bagchi and Vipul Pancholi was hearing appeals filed by Meta Platforms and WhatsApp LLC against a National Company Law Appellate Tribunal (NCLAT) order, which had upheld a Rs 213.14 crore penalty imposed by the Competition Commission of India (CCI).

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The CCI has also filed a cross-appeal challenging the NCLAT decision insofar as it allowed WhatsApp to share user data for advertising purposes.

Agreeing to admit the appeals, CJI Kant-led Bench made sharp observations on the nature of WhatsApp’s privacy policy, describing it as a “take it or leave it” arrangement that leaves consumers with no real choice.

“What is the choice? You have complete monopoly in the market, and you are saying you are giving a choice. It is either you walk out of WhatsApp, or we will share your data,” the apex court remarked.

During the hearing, the CJI-led Bench repeatedly flagged concerns about the fairness of the privacy policy, particularly for ordinary users.

“A poor woman selling fruits on the street — will she understand the terms of your policy? The language is so cleverly drafted that even some of us may not understand it,” the top court said.

Describing the alleged data practices as deeply problematic, the Supreme Court observed: “This is a decent way of committing theft of private information. You cannot play with the right to privacy of this country. You are making a mockery of constitutionalism.”

It also expressed concern over instances of targeted advertisements appearing soon after personal communications, even as WhatsApp reiterated that its messaging services are end-to-end encrypted and that it cannot read user conversations.

Solicitor General Tushar Mehta, appearing for the Centre, supported the apex court’s concerns, stating that personal data today has clear monetary value and is being commercially exploited.

After an extensive hearing, the CJI Kant-led Bench directed Meta and WhatsApp to file an affidavit explaining their privacy policy and data-sharing mechanisms, including how user consent is obtained and communicated. The apex court also impleaded the Union government as a party to the proceedings. The matter has been posted for further hearing next week.