Supreme Court Critiques WhatsApp's Privacy Policy Amid Data Sharing Concerns

Supreme Court's Stance on WhatsApp's Privacy Practices

On Tuesday, the Supreme Court expressed strong disapproval of WhatsApp and its parent company Meta, labeling the messaging service's privacy policy as a coercive 'take it or leave it' approach. The court highlighted concerns that this policy could facilitate data theft.

A panel consisting of Chief Justice Surya Kant and Justices Joymalya Bagchi and Vipul Pancholi emphasized that WhatsApp must not infringe upon the privacy rights of Indian users.

According to the court, WhatsApp and Meta cannot disregard the privacy rights of individuals under the guise of data sharing, stating, 'You are making a mockery of the constitutionalism of this country.'

The court noted that consumers are left with no alternatives due to the monopoly established by the technology giant.

This discussion arose during the appeals process initiated by WhatsApp against a ruling from the National Company Law Appellate Tribunal, which upheld a hefty penalty of Rs 213 crore imposed by the Competition Commission of India for its 2021 privacy policy.

In January 2021, WhatsApp notified users about modifications to its terms of service and privacy policy, which took effect in February 2021. Users were required to accept these new terms to continue using the app.

The previous policy from 2016 allowed users to opt out of data sharing with Meta, whereas the revised policy mandated it.

During the hearing, the bench pointed out the lack of a clear option for users to opt out of the new policy.

Chief Justice Kant questioned, 'Where is the question of opt out?' and remarked that the current approach resembles a 'decent way of committing theft of private information.' He further noted that users are often unaware of their rights to opt out.

Kant also raised concerns about the transparency of WhatsApp's privacy policy, questioning how an average person, such as a street vendor, could comprehend the complex terms.

In response, WhatsApp's counsel argued that only limited data is shared and pointed to the existence of a data protection law in India, referring to the Digital Personal Data Protection Act enacted in 2023.

However, the court remarked that this new legislation has yet to be implemented.

The Chief Justice reiterated that WhatsApp's primary function is to provide messaging services, not to collect and sell user data.

Justice Bagchi expressed concerns regarding the broader behavioral patterns exhibited by WhatsApp and Meta, emphasizing that the Digital Personal Data Protection Rules address privacy issues.

He stated, 'We are concerned with behavioral tendencies,' indicating that user data is being utilized for online advertising purposes.

WhatsApp's counsel maintained that the platform is encrypted, ensuring that messages exchanged between users remain unreadable by the company.

During the proceedings, the bench suggested that WhatsApp submit an affidavit detailing its privacy policy and the mechanics of its data-sharing practices.

The court has scheduled the next hearing for February 9, adding the Union government as a participant in the case.

Following WhatsApp's policy changes in 2021, the Competition Commission of India initiated an investigation. In November 2024, the commission determined that the new policy constituted an abuse of dominance under the Competition Act of 2002.

WhatsApp was instructed not to share any data collected on its platforms with Meta or its products for a period of five years.

WhatsApp and Meta subsequently appealed against this ruling at the National Company Law Appellate Tribunal.

In November, the tribunal partially sided with WhatsApp, overturning the Competition Commission's finding that Meta had exploited its dominant position in the messaging market to bolster its online advertising presence, while still upholding the Rs 213 crore penalty.

WhatsApp and Meta have since challenged this penalty in court.