The Supreme Court on Tuesday slammed global tech giants Meta Platforms Inc and WhatsApp for playing with the right to privacy of Indian citizens in the name of data sharing and allegedly committing theft of private information of customers, creating a monopoly in the market.“You cannot play with the right to privacy of citizens of this country in the name of data sharing… We will not allow you to share a single word of the data. Either you give an undertaking or we will have to pass an order. You cannot violate the right to privacy of citizens,” a Bench led by Chief Justice of India Surya Kant said.Hearing appeals of Meta and WhatsApp challenging a Competition Commission of India (CCI) order imposing a penalty of Rs 213.14 crore over the privacy policy, the Bench highlighted the unavailability of any clear option for a WhatsApp user to opt out of such a privacy policy.On behalf of Meta and WhatsApp, senior advocates Mukul Rohatgi and Akhil Sibal told the Bench that the penalty amount had already been deposited.The CCI has also moved the top court challenging the NCLAT’s order allowing Meta and WhatsApp to share users’ data for advertising purposes. Solicitor General Tushar Mehta said, “Our personal data is not only sold, but also commercially exploited.”“Where is the question of opting out? Show me on your mobile. This is a decent way of committing theft of private information… You know your commercial interest and you also know how you have made consumers addicted to the app… everybody uses it. If users have a right to opt out, how will they know this right exists? Let’s see the option…. When it comes to opting out, the information is in a newspaper. How will a person know?” the CJI wondered.Describing Meta and WhatsApp users as silent, unorganised and digitally dependent customers unaware of the implications of data-sharing policies, the top court decried WhatsApp’s privacy policy, asserting, “We will not allow the rights of any citizen of this country to be damaged.”The top court directed that the Centre should be made a party to the case. Asking the Centre to file an affidavit spelling out its position on the contentious issue, the Bench posted the matter for further hearing on February 9 when it will consider passing some interim orders.The Bench, which also included Justice Joymalya Bagchi and Justice Vipul M Pancholi, warned the tech giants that it would not permit any sharing of user data without adequate safeguards.“How can you play with the right to privacy of people like this? People pay you for this…What is the choice? You have a complete monopoly in the market and you are saying I am giving a choice. It’s either you walk out of WhatsApp policy or we will share the data,” the Bench told the tech giants.“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,” CJI Surya Kant said.As Sibal said it’s done with users’ consent and there’s an “opt-out” option, the CJI said, “What do you mean by opt-out? 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 CJI went on, “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 people. This is a decent way of committing theft of private information. We will not allow you to use it,” the Bench said.Rohatgi submitted that a Constitution Bench was examining WhatsApp’s privacy policy and that an undertaking had been given that no user would be barred from WhatsApp for not accepting the 2021 privacy policy. He said the Constitution Bench had allowed WhatsApp to operate in India in the same manner as it functions in other jurisdictions, adding that the Digital Personal Data Protection Act, 2023, provides time until May 2027.The Bench said the DPDP Act did not address the issue of “value” on data sharing, unlike the EU Regulations.
