'You Can't Play With Data Of Indians': Supreme Court Questions Meta & WhatsApp Over Privacy Policy

The Supreme Court on Tuesday made strong critical remarks against Meta Platforms and WhatsApp LLC regarding their privacy policy and said that the Court will not allow them to exploit the personal data of Indians. The Court was hearing the appeals filed by Meta Platforms and WhatsApp LLC challenging the judgment of the National Company Law Appellate Tribunal (NCLAT) which had upheld the ₹213.14 crore penalty imposed by the Competition Commission of India (CCI) over WhatsApp's 2021 privacy policy.There was also a cross-appeal filed by the Competition Commission of India challenging the NCLAT's order to the extent it allowed Meta and WhatsApp to share users' data for advertising purposes after finding that there was no abuse of dominance by them.A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi heard the matters.Senior Advocate Mukul Rohatgi and Senior Advocate Akhil Sibal, appearing for Meta and WhatsApp, respectively, informed that the penalty amount has been deposited. Theft of private information : SC slams WhatsApp & MetaCJI Surya Kant, while agreeing to admit the appeals, however, raised concerns about the privacy policy of the platform. CJI infact even started dictating an order restraining the platforms from sharing the data. Rohatgi and Sibal interjected to submit that the NCLAT has actually decided in their favour on this point. The CCI's counsel contested this claim.The CJI questioned the claim that WhatsApp has given a choice to the customer, since the platform is a monopoly. "What is the choice? You have complete monopoly in the market and you are saying I am giving a choice. It is either you walk out of WhatsApp policy or we will share the data.""We may hear the appeal on merits. In the meantime, we will not allow you to share even a single piece of information. If you can give an affidavit of your management with an undertaking, we will hear, or else we will dismiss. You were bought by Facebook, tomorrow Facebook will be bought by someone else and you will transfer the data. You cannot play with the right of privacy of this country, let a clear message go on your WhatsApp. You are making a mockery of the constitutionalism of this country," CJI Surya Kant said.When Sibal said that it is done with the consent of the consumer and there is an "opt-out" option, CJI said, "What do you mean by opt-out? You opt-out of the country, withdraw your facilities from here. Because you are creating a monopoly in the market, there is no choice for the consumer."When Sibal reiterated that there is an option to opt out of the policy, CJI questioned the efficacy of the policy. "A poor woman selling fruits on the streets, will she understand the terms of your policy? Can you imagine the language you use, very cleverly drafted, even some of us will not be able to understand. The policy must be formulated from the perspective of the common customer. Will your domestic help understand this? You might have taken the data of millions of persons. This is a decent way of committing theft of private information. We will not allow you to use it," CJI Kant said.CJI said that there are "silent customers" who are "unorganised" and are "addicted to the system" who are not aware of the privacy policies. He asked how a person in a remote village in Tamil Nadu or Bihar will understand the complicated language of the policy. "We will not allow the rights of any citizen of this country to be damaged," CJI asserted.CJI said that unless WhatsApp and Meta give an undertaking that the personal data of users will not be used, the Court will not hear the matter. Rohatgi at this juncture submitted that a Constitution Bench is examining WhatsApp's privacy policy, and in that matter, an undertaking was given that no user will be barred from WhatsApp for not accepting the 2021 privacy policy. Rohatgi said that the Constitution Bench has allowed WhatsApp to proceed in the same fashion as it was functioning in other jurisdictions.Rohatgi also submitted that the Digital Personal Data Protection Act 2023 has given time till May 2027. Justice Bagchi however pointed out that the Act is yet to be in force.Will examine how personal data is exploited commercially : BenchSolicitor General of India Tushar Mehta interjected to submit that "our personal data is not only sold, but also commercially exploited."Justice Bagchi said that the Court would like to examine how the data is "rented out" by WhatsApp and how people are targeted with ads after analysing their behavioural trends."Every silo of data, with regard to an individual, irrespective of privacy, has a value. The DPDP Act only addresses privacy. We would like to examine what is the rent sharing of data...we are concerned about how our behavioural tendencies and trends are utilised and monetised, and thereby your parent company can leverage it for the purpose of dominance and advantage in online advertising. You will target me on that...

'You Can't Play With Data Of Indians': Supreme Court Questions Meta & WhatsApp Over Privacy Policy

Anmol Kaur Bawa

The Court raised concerns over how the personal data of users is exploited for targeted online ads.

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