Mumbai: The Competition Commission of India (CCI) has approached the National Company Law Appellate Tribunal (NCLAT) seeking explicit clarification on whether WhatsApp can share user data with parent company Meta for advertising purposes, weeks after the tribunal lifted a five-year prohibition on such data flows.
In an application filed on November 18, the regulator asked the tribunal to spell out how the privacy safeguards outlined in its November 4 judgment should apply when WhatsApp data is used for targeted advertising. The plea comes barely a fortnight after the order that overturned the CCI’s blanket ban on data sharing imposed in 2024.
Regulator Flags Ambiguity in Judgment
The CCI pointed to parts of the November 4 ruling that emphasise informed consent, transparency and a unified consent mechanism. It has asked whether these principles are intended to apply uniformly to all types of user data—including data used to deliver personalised ads—or whether advertising-related information should be treated differently.
According to the regulator, the judgment’s language could be interpreted to mean that once WhatsApp implements a common consent framework, the distinction between core and non-core data usage may effectively disappear. Such an interpretation, it warned, could influence how platforms design their consent flows and disclosures.
A bench comprising NCLAT Chairperson Justice Ashok Bhushan and technical member Arun Baroka has issued notice on the CCI’s plea and granted Meta and WhatsApp time to file responses. The next hearing is set for December 2.
Separately, the tribunal has sought replies to a joint request from Meta and WhatsApp seeking redaction of what they claim are confidential portions of the November 4 judgment.
Long-Running Dispute Rooted in WhatsApp’s 2021 Policy
The controversy stems from WhatsApp’s 2021 privacy policy update, which removed the option for users to opt out of data sharing with Meta group entities. The move triggered widespread backlash, with critics arguing that users were left with a “take it or leave it” choice.
Acting suo motu, the CCI began investigating whether the updated policy amounted to an abuse of dominance in the OTT messaging market. In November 2024, the watchdog fined Meta and WhatsApp ₹213.14 crore, found them guilty of leveraging market power, directed greater transparency on data use, and imposed a five-year bar on sharing WhatsApp data with Meta affiliates.
Meta and WhatsApp challenged the order before NCLAT, which in January 2025 granted interim relief by staying the data-sharing ban, noting that an abrupt halt could impact the free-to-use business model.
NCLAT’s November 4 Verdict: Fine Upheld, Ban Lifted
In its final ruling on November 4, the appellate tribunal upheld the penalty and most behavioural remedies but struck down the long-term ban on data sharing for advertising. It held that a prohibition is unnecessary if WhatsApp provides meaningful opt-in and opt-out choices and maintains clear, purpose-linked disclosures.
While affirming the CCI’s jurisdiction to examine anti-competitive conduct involving data and privacy, the tribunal did not endorse the regulator’s finding that Meta had unfairly leveraged WhatsApp’s dominance to strengthen its advertising arm.
Meta, WhatsApp Oppose Clarification Move
During the hearing on the CCI’s clarification plea, senior advocates Kapil Sibal (for Meta) and Mukul Rohatgi (for WhatsApp) argued that the November 4 judgment was comprehensive and left no ambiguity. They maintained that if the CCI was dissatisfied, it should seek a review rather than attempt to reinterpret the order through a clarification request.
The CCI, however, urged that its concerns be resolved before any appeal reaches the Supreme Court, warning that failing to do so could render the questions “academic.”
Broader Implications for India’s Data and Competition Landscape
The exchanges underscore a larger policy debate over how India’s competition regime will interact with evolving privacy norms. While NCLAT’s ruling reinforces consent, purpose limitation and user choice, its decision to relax the long-term restriction on ad-related data flows has sparked unease among privacy advocates.
For WhatsApp’s more than 500 million Indian users, the tribunal’s decision effectively reopens the door for deeper data integration with Meta’s advertising systems—albeit under a more transparent, choice-driven framework than the controversial 2021 policy offered.
