Supreme Court warns Meta not to share WhatsApp user data for ads

The Supreme Court on Tuesday issued a strong warning to global technology company Meta Platforms and its messaging service WhatsApp, saying they cannot be allowed to share user data for advertising purposes under WhatsApp’s 2021 privacy policy.

A bench led by the Chief Justice and also comprising Justice Joymalya Bagchi and Justice Vipul Pancholi told Meta that any continued sharing of WhatsApp user data for advertising would not be tolerated.

The court initially asked Meta and WhatsApp to file an affidavit giving a clear undertaking that WhatsApp user data would not be shared for advertising purposes, warning that failure to do so could result in dismissal of their case. However, the court did not pass any adverse order at the end of the proceedings after the legal team representing Meta and WhatsApp sought time to respond to it queries.

WhatsApp’s 2021 policy allowed the sharing of user data such as phone numbers, device information and interactions with business accounts with its parent company Meta on a take-it-or-leave-it basis, raising privacy and competition concerns in India. These concerns led the country’s competition watchdog, the Competition Commission of India (CCI), to investigate the policy and impose a penalty for abuse of dominant position.

“We will not allow you to share even a single piece of information. You cannot play with the rights of this country—let a clear message go out,” the Chief Justice said, adding: “You can’t play with the right to privacy of this country in the name of data sharing. You are making a mockery of constitutionalism. How can you play with people’s right to privacy like this? People pay you for this. Consumers have no choice—you have created a monopoly.”

The court also strongly criticised the manner in which Meta framed its opt-in and opt-out choices for users, saying the policy language was not comprehensible to ordinary people.

“The language of your policy is such that an ordinary user cannot understand it. What kind of option are you giving? Imagine a street vendor—a poor woman sitting on the street selling fruits. How will she understand your terms and conditions about opting in or opting out?” the bench said, adding that the policy appeared to be “very cleverly crafted”.

Senior advocate Mukul Rohatgi, appearing for WhatsApp, asked the court for a week to file an affidavit explaining the 2021 privacy policy, saying the court could take an appropriate view after examining the explanation.

Accepting the request, the bench permitted Meta and WhatsApp to file an affidavit detailing their data-sharing practices and said it would hear the matter again on 9 February before passing further orders. The court also directed that the ministry of electronics and information technology be impleaded as a party to the case.

Lengthy dispute

The long-running dispute over WhatsApp’s 2021 privacy policy reached the apex court after being examined by the Competition Commission of India (CCI) and the National Company Law Appellate Tribunal (NCLAT).

The Supreme Court is hearing petitions filed by Meta Platforms and WhatsApp challenging the ₹213.14-crore penalty imposed by the CCI, which held that WhatsApp abused its dominant position in the messaging market by forcing users to accept its 2021 privacy policy on a “take-it-or-leave-it” basis. Under the policy, users had to agree to share more data with Meta companies to continue using WhatsApp.

Meta has also challenged the NCLAT’s 4 November ruling, which largely upheld the CCI’s findings and the penalty, but set aside a key restriction. At the same time, the CCI has approached the Supreme Court challenging the NCLAT’s decision to remove the five-year ban on WhatsApp sharing user data with Meta companies for advertising.

While the NCLAT agreed that WhatsApp’s 2021 policy relied on coerced consent and harmed user choice, it later clarified that WhatsApp must obtain user consent before sharing data with Meta companies for both advertising and non-advertising purposes, and that it cannot claim open-ended rights over user data.

The dispute dates back to November 2024, when the CCI fined Meta and WhatsApp ₹213.14 crore. After interim relief from the NCLAT in January 2025, the matter reached the Supreme Court, which will now decide how far WhatsApp can go in sharing user data under its 2021 privacy policy.

‘Commercial exploitation of data’

During the proceedings, solicitor general Tushar Mehta, appearing for the Union government, argued that personal data was being commercially exploited by digital platforms. He said that in jurisdictions such as the European Union, economic value is assigned to data, and in certain contexts it is subject to taxation on a notional basis.

In response, the legal team representing Meta and WhatsApp contended that only limited and specific categories of data are shared. They said that WhatsApp messages are end-to-end encrypted, and that even WhatsApp itself cannot read messages exchanged between users. The global tech giant also argued that it does not enjoy dominance in the advertising market, and pointed out that India now has a data protection law in place to address such concerns. India’s Digital Personal Data Protection Act, 2023 regulates how platforms can collect and share personal data.

Justice Joymalya Bagchi, however, noted that the law is yet to be enforced. He said while the statute broadly addresses privacy, the court is concerned with examining the behavioural patterns underlying such data-sharing practices. The bench also said that courts across jurisdictions need to adopt a stricter approach while scrutinising such practices.

What if Meta loses?

If the Supreme Court ultimately bars Meta from sharing user data for advertising purposes while upholding the findings of the Competition Commission of India, it could have significant implications for Meta and WhatsApp’s operations in India, where the platforms have a combined user base of nearly 850 million—around 350 million on Facebook and over 500 million on WhatsApp.

WhatsApp has emerged as a key channel for marketing and customer engagement. According to Haptik’s State of WhatsApp Marketing 2025 report, the platform has over 3.14 billion users globally, with brands increasingly relying on it for personalised communication. The report noted open rates of nearly 98% and click-through rates of about 45%, with companies across retail, fintech and healthcare using WhatsApp for sales, customer support and customer retention. The adoption of generative AI tools has further enhanced personalisation and engagement, improving outcomes by up to 9%.

Mint's queries emailed to a Meta spokesperson remained unanswered at the time of publishing.