Supreme Court to WhatsApp over its 2021 privacy policy: If you can't follow our Constitution, you can leave

Supreme Court of India slammed WhatsApp parent Meta Platforms while hearing a plea regarding WhatsApp's 2021 privacy policy. The policy allows WhatsApp to share users' data with Facebook and all its group companies for the purposes of commercial advertising and marketing. The court made the observations while hearing their appeals against a Competition Commission of India order imposing a penalty of Rs 213.14 crore over the privacy policy. Appearing for the government, Solicitor General Tushar Mehta criticised the "exploitative" policy for sharing user data for commercial purpose, and the Chief Justice responded, "If you can't follow our Constitution, leave India. We won't allow citizens' privacy to be compromised."

Calling the practice a "mockery of constitutionalism," the Court questioned how consent could be considered valid when users are effectively forced to accept the policy on a "take it or leave it" basis. Justice Joymalya Bagchi observed that what had been held against the companies was that the consent obtained was "manufactured consent."


CJI Surya Kant cautioned WhatsApp and Meta against sharing users’ personal data with anyone. The CJI further observed: “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, saying, “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.”

A Bench led by Chief Justice of India Surya Kant, while hearing appeals filed by WhatsApp and Meta, as well as a separate appeal by the CCI challenging one of the NCLAT findings, said, "We will not allow to share a single piece of information. You can't play with the right to privacy in this country." Emphasising that the right to privacy cannot be compromised, the Bench asserted that it would not allow the rights of any citizen to be violated.

"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", the CJI said.

What WhatsApp said in its defence

Senior counsel Mukul Rohatgi, appearing for Meta and WhatsApp, submitted that a related matter is pending before a Constitution Bench and that the service is free of charge, no consumer is asked to pay. Senior counsel Arun Kathpalia clarified that not all data is shared, only specific data.

The Court posted the matter for the purpose of issuing interim directions on February 9. The Bench has asked WhatsApp and Meta to file an affidavit giving a categorical undertaking that they will not share user data. The court indicated that if such an affidavit is not filed, their appeals against the NCLAT order are liable to be dismissed.

What exectly is WhatsApp 2021 Privacy Policy

The new policy says this: “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 the WhatsApp Privacy policy 2021, WhatsApp users have two options: Agree to share their personal information with Facebook or delete their WhatsApp accounts.

Since releasing the initial policy change, WhatsApp later clarified that the company doesn’t collect data from messages sent between family members and friends, just from personal information and what users send businesses. Information that a user sends to a business can be collected and shared with Facebook for advertising.



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