'Can't play with right to privacy of citizens in the name of data sharing,' SC slams WhatsApp, Meta

New Delhi: The Supreme Court on Tuesday came down heavily on Meta Platforms Inc and WhatsApp, taking up their appeals against a Competition Commission of India's order imposing a penalty of Rs 213.14 crore over privacy policy, saying tech giants cannot “play with the right to privacy of citizens in the name of data sharing.”

A bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi questioned the way the privacy terms of these companies were crafted, saying it will not allow tech giants like WhatsApp and its parent company Meta share the data of consumers who are in unequal agreements.

Meta and WhatsApp were also aggrieved with the National Company Law Appellate Tribunal's judgment that upheld the CCI’s findings of abuse of dominance, while granting limited relief on advertising-related data sharing.

In oral remarks, the bench said they have made "mockery of constitutionalism of this country", and that their conduct "amounts to a decent way of committing theft of the private information."

The court felt that there was a grave danger of compromising the right to privacy, zealously guarded under Indian law, when user data is exploited solely for commercial considerations.

Senior advocate Mukul Rohatgi and senior advocate Akhil Sibal, for Meta and WhatsApp, respectively, submitted that the penalty amount has been deposited.

However, the bench voiced its serious concern with the privacy policy of the platforms.

Rohatgi submitted that an undertaking was given before the Constitution bench that no user will be barred from WhatsApp for not accepting the 2021 privacy policy.

He said the Digital Personal Data Protection Act 2023 has given time till May 2027. However, the court said that it is yet to come into force.

"We will not allow you to share even single information with anyone, with this Meta business or anything. You can’t play with the right to privacy of this country, like this, in the name of selling the data. We are passing a very strict order and if there is non-compliance, we will throw you out in a second from the court," the bench told the counsel.

The court was informed that all that the NCLAT order does is place Indian consumers in the same position as how they are treating other consumers in other jurisdictions.

"What is the choice with the people? Because you have complete monopoly in the market, you will say I am giving a choice; the choice is like the agreement, either you walk out of WhatsApp facility or I will share your data. Why should we allow it?” the bench asked the counsel.

"We will not allow you to share even a single word of data. It must be very clear, no question of sharing data. How can you play with the right of privacy of people like this?" the bench further asked.

The court said, "Today WhatsApp was bought by Facebook and tomorrow both will be bought by someone else, and you will transfer the entire data."

As the counsel said there is an opt-out choice for the consumer, the bench then asked, "What do you mean by opt-out? Then opt-out is that you opt out of the country, and withdraw your facilities from here."

Solicitor General Tushar Mehta said privacy and personal information were "not only sold but commercially exploited."

"A street vendor, a poor lady sitting on the street selling some fruits, how will she understand the terms and conditions of a very cleverly crafted language? Even some of us will not understand that language," the bench said.

"Please show your mobile or we will bring out mobile. You show how this opt-out business operates, nobody will be able to understand you. By now, we do not know millions of data…this amounts to in a way a decent way of committing theft of private information. We will not allow it to happen,” the bench said.

The court said it would like to examine how the data is rented out by WhatsApp and how people are targeted with ads after analysing their behavioural trends.

"Every silo of data, irrespective of privacy, has a value; we would like to examine what the rent sharing of data is...we are concerned about how our behaviour is utilised and monetised for trends," the bench said.

The counsel contended that WhatsApp messages are end-to-end encrypted and that even WhatsApp cannot see the messages sent between two users.

The bench, however, said the new data protection law does not address the issue of "value" on data sharing, unlike the EU regulations.

Rohatgi submitted before the bench that Meta will file an affidavit explaining their activities and then the bench may take a call.

The bench decided to post the matter for further hearing on February 9.