Opt out of India, you are creating monopoly, SC tells Meta, WhatsApp

Supreme Court warns Meta and WhatsApp that they cannot operate in India without complying with Indian law, flags risks to users' data and market competition

The Supreme Court on Tuesday told Meta Platforms and WhatsApp that they cannot be allowed to operate in India if they do not comply with the law of the land.

 

 The apex court warned that it would not permit even a single piece of Indians’ personal data to be exploited. This comes as it examines challenges to penalties imposed over WhatsApp’s 2021 privacy policy.

 

“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,” the court told the companies during the hearing.

   

The remarks came as a Bench of Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi took up appeals by Meta Platforms and WhatsApp LLC against a decision of the National Company Law Appellate Tribunal (NCLAT). The appellate tribunal had upheld a ₹213.14-crore penalty imposed by the Competition Commission of India (CCI).

 

The CCI has also filed a cross-appeal against the NCLAT’s decision allowing data sharing for advertising after holding that there was no abuse of dominance on that count.

 

Senior advocates Mukul Rohatgi and Akhil Sibal, appearing for Meta and WhatsApp, told the court that the penalty amount has been deposited.

 

While agreeing to hear the appeals on merits, the Chief Justice voiced sharp reservations about the platforms’ privacy framework and indicated that the court could restrain data sharing in the interim.

 

When their counsel submitted that the NCLAT had ruled in their favour on this aspect, the CCI disputed the claim.

 

Questioning the assertion that users have a real choice, the CJI said the platform operates as 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,” the CJI said.

 

Setting out the court’s position, the CJI warned, “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.”

 

When Sibal argued that data sharing is based on user consent with an “opt-out” option, the CJI retorted, “What do you mean by opt-out?” questioning whether ordinary users could even understand 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,” he said.

 

The CJI also referred to “silent customers” who are “unorganised” and “addicted to the system,” asking how someone in a remote village in Tamil Nadu or Bihar could be expected to comprehend the dense policy language. 

 

“We will not allow the rights of any citizen of this country to be damaged,” he asserted.

 

The Bench made it clear that unless Meta and WhatsApp give an undertaking that users’ personal data will not be used, the court would not proceed with the hearing.

 

Rohatgi responded in parallel proceedings before a Constitution Bench that WhatsApp had undertaken not to bar users who did not accept the 2021 policy. And, the company had been allowed to function as it does in other jurisdictions.

 

He also pointed to timelines under the Digital Personal Data Protection (DPDP) Act, 2023, a submission Justice Bagchi countered by noting that the law is yet to be brought into force.

 

Will examine commercial exploitation of data

 

Solicitor General Tushar Mehta told the court that “our personal data is not only sold, but also commercially exploited.”

 

Justice Bagchi said the court would scrutinise how data is “rented out” and how behavioural analysis is used to target advertising.

 

“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,” Justice Bagchi said.

 

He added that the court would also look at the value of user “footprints” shared with Meta and the resulting targeted advertising advantage.

 

The CJI cited personal experience to illustrate the concern, “If a message is sent to a doctor on WhatsApp that you are feeling under the weather, and the doctor sends some medicine prescriptions, immediately what kind of messages start coming to me? Within 5 to 10 minutes, you start getting message in your email and YouTube that you go for this medicine, that medicine.”

 

The counsel for Meta and WhatsApp reiterated that messages are end-to-end encrypted and that “WhatsApp cannot see the messages sent between two users.”

 

Justice Bagchi observed that unlike European regulations, the DPDP Act does not address the “value” of data sharing.

 

Engaging with the Solicitor General, he questioned whether it is acceptable to treat data as valueless once privacy is lost, drawing an analogy with rent for the use of space. The Solicitor General said the idea would be placed before the appropriate authority.

 

“All over the world, judiciaries will have to go into an intensive and innovative oversight into these aspects,” Justice Bagchi said.

 

Senior advocate Samar Bansal, for the CCI, said the regulator had examined these issues while imposing the penalty. 

 

“Their entire revenue comes from advertising. We are the products. It is free because of that,” he said. 

 

The CJI responded that while there is nothing wrong with earning “legitimate income,” “the commercial interests of the companies cannot be at the cost of the rights of Indians.”

 

Facing sustained questioning, Rohatgi said Meta would file an affidavit explaining its activities and invited the court to decide thereafter. Accepting the suggestion, the Bench adjourned the matter to next Monday, granted time to file affidavits, and, on the CCI’s request, impleaded the Ministry of Electronics and Information Technology as a party.

 

Background

 

The case stems from the CCI’s November 2024 order on WhatsApp’s 2021 privacy policy update, which found that the messaging platform, dominant in India’s OTT messaging market, imposed a “take-it-or-leave-it” framework that denied users meaningful choice. The regulator held that continued access was made conditional on accepting expanded data sharing within the Meta group, amounting to abuse of dominance under the Competition Act, 2002.

 

Along with a Rs 213.14 crore penalty, the CCI issued remedial directions, including prohibiting the tying of service access to data sharing, mandating clear opt-in and opt-out mechanisms, and requiring detailed disclosures on inter-platform data sharing. 

 

In November 2025, the NCLAT set aside a five-year bar on advertising-related data sharing and overturned findings on unlawful leveraging into Meta’s advertising ecosystem, but sustained the monetary penalty.