The Supreme Court of India delivered a stern rebuke to Meta Platforms, the parent company of WhatsApp, during a hearing concerning WhatsApp's controversial 2021 privacy policy. The policy, which permits WhatsApp to share user data with Facebook and its affiliated companies for commercial advertising and marketing purposes, faced intense judicial scrutiny.
Court's Strong Observations on Privacy Violations
The bench, led by Chief Justice of India Surya Kant, made these remarks while hearing appeals against a Competition Commission of India (CCI) order that imposed a penalty of Rs 213.14 crore on the companies over the privacy policy. Solicitor General Tushar Mehta, representing the government, criticized the policy as "exploitative" for leveraging user data for commercial gains.
In a powerful response, Chief Justice Surya Kant stated, "If you can't follow our Constitution, leave India. We won't allow citizens' privacy to be compromised." The court labeled the practice a "mockery of constitutionalism" and questioned the validity of user consent, which it described as being obtained on a coercive "take it or leave it" basis.
Justice Bagchi on 'Manufactured Consent'
Justice Joymalya Bagchi observed that the consent extracted from users amounted to "manufactured consent," highlighting the lack of genuine choice for consumers. The CJI further cautioned WhatsApp and Meta against sharing users' personal data with any third parties, emphasizing the sanctity of privacy rights in India.
CJI's Critique on Market Dominance and Data Theft
Chief Justice Surya Kant pointedly remarked, "Where is the question of opt out? Show me in your mobile and I will show your mobile. This is a decent way of committing theft of private information." He underscored WhatsApp's market dominance, noting, "You know your commercial interest and you also know how you have made consumers addicted to the app. Everybody uses it... Consumer has no choice, you have created monopoly."
The bench asserted, "We will not allow to share a single piece of information. You can't play with the right to privacy in this country." It reiterated that the right to privacy is zealously protected and will not be compromised, stating, "This is a decent way of committing theft on the privacy of the country. Right to privacy is so zealously protected in this country, we will not allow you to violate it."
WhatsApp's Defense and Court's Interim Directions
Senior counsel Mukul Rohatgi, representing Meta and WhatsApp, argued that a related matter is pending before a Constitution Bench and highlighted that the service is free, with no charges to consumers. Senior counsel Arun Kathpalia clarified that not all data is shared, only specific information.
The court has posted the matter for issuing interim directions on February 9. It has directed WhatsApp and Meta to file an affidavit providing a categorical undertaking that they will not share user data. The bench indicated that failure to file such an affidavit could result in the dismissal of their appeals against the National Company Law Appellate Tribunal (NCLAT) order.
Understanding the WhatsApp 2021 Privacy Policy
The 2021 privacy policy states: "As part of the Facebook family of companies, WhatsApp receives information from, and shares information with, this family of companies. We may use the information we receive from them, and they may use the information we share with them, to help operate, provide, improve, understand, customize, support, and market our Services and their offerings."
Under this policy, WhatsApp users are presented with two options: agree to share personal information with Facebook or delete their WhatsApp accounts. WhatsApp later clarified that it does not collect data from messages between family and friends, but information sent to businesses can be collected and shared with Facebook for advertising purposes.
This case highlights the ongoing tension between global tech giants and India's robust legal framework for data privacy, setting a precedent for how user rights are protected in the digital age.
