WhatsApp Privacy Case: CCI Asks NCLAT To Clarify If Privacy Safeguards Apply Over Data Shared For Advertising

The Competition Commission of India (CCI) has approached the National Company Law Appellate Tribunal (NCLAT) seeking clarification on the tribunal's November 4 judgment, which had set aside the five-year prohibition on WhatsApp sharing user data with Meta for advertising purposes.

The CCI has asked the tribunal whether, in light of the judgment's emphasis on user privacy and consent, the safeguards upheld for non-advertising data sharing should also extend to data shared for advertising purposes.

The bench, headed by Chairperson Justice Ashok Bhushan and Technical Member Arun Baroka allowed Meta and WhatsApp time to file formal objections, listing the matter in December. The tribunal has also issued notice in another application filed by Whatsapp and Meta seeking redaction of certain confidential parts of the judgment.

In the November 4 ruling, the NCLAT had struck down the CCI's earlier direction that imposed a blanket five-year ban on the use of WhatsApp user data for advertising.

The tribunal held that such a restriction was unnecessary once users were given a meaningful “opt-in/opt-out” choice. However, it upheld certain safeguards, notably,

1. WhatsApp must explain in detail what user data is shared with other Meta companies/products and link each data type to a specific purpose.

2.Sharing WhatsApp data with other Meta entities for purposes not related to providing WhatsApp services cannot be made a condition for accessing the service in India.

3. All users, including those who accepted the 2021 policy update, must be provided with the rights and choices outlined for non-service-related data sharing.

Arguing before the tribunal, the CCI submitted that the distinction between advertising and non-advertising purposes appeared to have been removed by the NCLAT's own reasoning, which framed user consent as the overriding principle. The Commission cited portions of the judgment to show that the tribunal had envisaged a unified consent framework applicable to all categories of data sharing, including advertising. On this basis, the CCI sought clarification on whether the upheld safeguards should automatically apply to advertising-related data sharing as well.

Senior Advocates Kapil Sibal (for Meta) and Mukul Rohatgi (for WhatsApp) opposed the application, arguing that, the judgment is a "speaking order" and contains no ambiguity warranting clarification. If the CCI believes the judgment contradicts itself, the appropriate remedy is a "review petition", not a clarification motion. It further argued that the CCI cannot seek to reinterpret the judgment “paragraph by paragraph” without invoking the proper appellate route.

Rohatgi contended that “if the judgment says what the applicant thinks it says, then no clarification is required; if it does not, clarification does not lie,” asserting that the tribunal's order must stand as delivered.

The CCI urged that its clarification plea be heard before any potential appeal is filed in the Supreme Court, arguing that such an appeal could render its application “practically infructuous.”

Earlier, the NCLAT had upheld the Rs 213-crore penalty imposed on Meta and WhatsApp for abusing dominance in the market for smartphone-based OTT messaging services. The tribunal agreed with the CCI that the 2021 WhatsApp policy update forced users into accepting expanded data-sharing with Meta platforms and allowed Meta to leverage this data in the online advertising market, amounting to an unfair and anti-competitive practice.

At the same time, the tribunal reaffirmed that privacy and competition law operate in complementary spheres, enabling the CCI to examine abuse-of-dominance issues even when user-data concerns are involved.

Case Title: WhatsApp LLC v CCI