New Delhi: In a blistering courtroom session on February 3, 2026, India’s Supreme Court sharply criticized Meta Platforms and its subsidiary WhatsApp for their controversial 2021 privacy policy, calling the “take-it-or-leave-it” approach a form of exploitation that undermines the constitutional right to privacy. Chief Justice Surya Kant, heading a three-judge Bench with Justices Joymalya Bagchi and Vipul M. Pancholi, made it clear that the court would not permit the commercial misuse of personal data belonging to millions of Indian users.
The hearing addressed appeals by Meta and WhatsApp challenging a ruling from the National Company Law Appellate Tribunal (NCLAT). In late 2025, the NCLAT upheld a ₹213.14 crore penalty imposed by the Competition Commission of India (CCI) for abuse of dominant position but set aside a five-year restriction on data sharing for advertising. Both sides appealed, with the CCI filing a cross-appeal against the partial relief granted to the companies.
WhatsApp’s 2021 Privacy Policy: The Root of the Controversy
The dispute traces back to WhatsApp’s 2021 policy update, which allowed the platform to share user metadata—such as phone numbers, device information, usage patterns, and interaction details—with Meta and its group companies. This data was intended for purposes including service enhancement, targeted advertising, marketing, and broader business operations across platforms like Facebook and Instagram.
The policy presented users with a binary choice: accept the terms to continue using WhatsApp or reject them and lose access to their accounts, chats, and groups. No genuine opt-out existed for continued service without data sharing. Senior advocates Mukul Rohatgi and Amit Sibal, representing the companies, defended the policy by asserting that users provided prior consent and could opt out of sharing. They emphasized end-to-end encryption, which prevents WhatsApp from accessing message content.
The Bench rejected these arguments outright. Chief Justice Kant described the setup as coercive, likening it to a scenario with “no real choice.” He remarked that opting out effectively meant “opting out of the country” given WhatsApp’s near-monopoly in instant messaging in India.
Judicial Concerns: Exploitation, Dominance, and Lack of Informed Consent
The court expressed grave worries about the commercial exploitation of personal data. Justices highlighted how behavioral trends derived from user interactions are analyzed and monetized, giving Meta an unfair edge in online advertising. Chief Justice Kant illustrated this with a real-world example: a user discussing health concerns with a doctor via WhatsApp suddenly receiving related medical ads, raising questions about surveillance-like practices.
Justice Bagchi underscored that every piece of personal data carries economic value, regardless of its sensitivity. He noted that India’s Digital Personal Data Protection (DPDP) Act, 2023, primarily safeguards privacy but contains no mechanisms for “rent sharing”—compensating users for the value companies extract from their data. The judge called for examining India’s framework against stricter models like the European Union‘s Digital Services Act, which addresses both privacy and economic aspects of data.
Solicitor General Tushar Mehta, appearing for the government, described users as being turned into “products” through commercial exploitation. He pointed out that some countries tax data sharing or impose substantial damages for misuse.
A major focus was the policy’s incomprehensible language. Chief Justice Kant questioned how vulnerable users—such as poor street vendors, rural residents in states like Tamil Nadu or Bihar, domestic helpers, or elderly individuals—could understand the “cleverly-crafted” and vague terms to give informed consent. He challenged the lawyers: “Will the domestic help at your houses understand this policy?” The Bench stressed it would evaluate the issue from the viewpoint of ordinary, “silent consumers” who lack a voice and are “addicted” to the platform.
Strong Judicial Rebuke and Potential Consequences
The hearing escalated dramatically as the Chief Justice labeled the data-sharing practice a “decent way of committing theft,” stating the companies had already collected “millions of bytes of data.” He declared, “You can’t play with the right to privacy of this country in the name of data sharing,” and warned that if Meta and WhatsApp could not comply with the Constitution, they should “leave India.”
The Bench demanded an affidavit from the companies’ management undertaking no further sharing of user data, threatening to dismiss the appeals and impose strict conditions otherwise. It described the consent as “manufactured” due to dominance and lack of alternatives.
India’s Evolving Data Protection Landscape
This case builds on foundational precedents. The 2017 Puttaswamy judgment affirmed privacy as a fundamental right under Article 21. The Justice B.N. Srikrishna Committee (2017) recommended comprehensive data protection legislation, leading to the DPDP Act, 2023.
The CCI invoked Section 4 of the Competition Act, 2002, to penalize unfair conditions and discriminatory practices stemming from dominance in the messaging market.
Next Steps and Broader Implications
The Supreme Court impleaded the Union government via the Ministry of Electronics and Information Technology (MeitY) and directed it to file a counter-affidavit addressing gaps in the DPDP Act regarding data valuation and monetization.
The matter stands adjourned to February 9, 2026, for interim directions. The outcome could force significant reforms in consent mechanisms, transparency, and business models relying on cross-platform data usage.
This development underscores India’s firm stance on protecting digital rights against powerful tech corporations. With WhatsApp integral to daily life for hundreds of millions, the court’s emphasis on meaningful choice and constitutional safeguards may reshape how global platforms operate in one of the world’s largest digital markets.
FAQs
1. What is the main issue in the Supreme Court case against WhatsApp and Meta?
The case revolves around WhatsApp’s 2021 privacy policy update, which requires users to accept data sharing with Meta (formerly Facebook) and its group companies for purposes like targeted advertising, service improvement, and marketing. The policy uses a “take-it-or-leave-it” approach: users must agree or delete their accounts with no meaningful alternative to continue using the app. India’s Competition Commission of India (CCI) fined Meta ₹213.14 crore in 2024 for abusing its dominant position in messaging by imposing unfair conditions and “manufactured” consent. The National Company Law Appellate Tribunal (NCLAT) upheld the fine but removed a five-year ban on data sharing for ads, leading to appeals by both sides. The Supreme Court is now examining whether this violates competition laws, privacy rights, and informed consent.
2. Why did the Supreme Court strongly criticize WhatsApp and Meta during the February 3, 2026 hearing?
A three-judge Bench led by Chief Justice Surya Kant (with Justices Joymalya Bagchi and Vipul M. Pancholi) described the policy as coercive and exploitative. The CJI called it a “decent way of committing theft” of personal data, saying the companies had already collected “millions of bytes” from users. Key concerns included: lack of real choice in a near-monopoly market (“What ‘opt out’? Then you opt out of the country”); complex, vague language that ordinary users (like rural residents, street vendors, or domestic helpers) cannot understand; commercial exploitation turning users into “products” via behavioral analysis for ads; and breach of the fundamental right to privacy under Article 21. The Bench warned that if Meta cannot respect India’s Constitution, it should “leave India,” and demanded an undertaking to stop sharing data or face case dismissal and strict conditions.
3. What is the status of the case as of February 4, 2026?
The Supreme Court has not issued a final verdict. It adjourned the matter for further hearing on February 9, 2026, to consider interim directions. The court impleaded the Union government (through the Ministry of Electronics and Information Technology) as a party and asked it to file a counter-affidavit, particularly on gaps in the Digital Personal Data Protection (DPDP) Act, 2023, regarding “rent sharing” or valuing/monetizing user data. Meta and WhatsApp must respond to the court’s queries, potentially including the demanded undertaking against data sharing during the appeal.
4. How does India’s privacy framework play into this dispute?
India’s landmark 2017 Puttaswamy judgment recognized privacy as a fundamental right under Article 21. The 2017 Justice B.N. Srikrishna Committee recommended strong data protection laws, leading to the DPDP Act, 2023, which focuses on lawful processing, consent, and privacy safeguards. However, the Supreme Court noted the Act addresses privacy but not the economic value of data (e.g., no provisions for compensating users or taxing sharing). The Bench compared India’s rules to the EU’s stricter Digital Services Act, which covers both privacy and data monetization. The case blends competition law (abuse of dominance under Section 4 of the Competition Act, 2002) with constitutional privacy concerns, highlighting how dominance can undermine meaningful consent.
5. What could be the potential outcomes and impact on users?
Possible outcomes include: upholding or modifying the CCI penalty; reimposing restrictions on data sharing for advertising; requiring clearer, simpler consent mechanisms; or mandating changes to WhatsApp’s policy in India. The court could impose interim bans on data sharing pending final resolution. For India’s hundreds of millions of WhatsApp users, this could mean better protection against targeted ads based on private conversations (e.g., health discussions leading to related promotions), more transparent policies, or even platform adjustments to comply with constitutional standards. It signals India’s tougher stance on Big Tech, potentially setting precedents for how global platforms handle user data in dominant markets without exploiting “silent consumers.”
