In a significant hearing on Tuesday, the Supreme Court (SC) of India strongly cautioned Meta Platforms Inc and its subsidiary WhatsApp against their "take it or leave it" privacy policy, asserting that the tech giants cannot exploit the right to privacy of Indian citizens in the guise of data sharing. The bench, presided over by Chief Justice Surya Kant and including Justices Joymalya Bagchi and Vipul M Pancholi, is hearing appeals against a Competition Commission of India (CCI) order that had imposed a penalty of ₹213.14 crore on WhatsApp for its privacy policy.
The Supreme Court's stern stance underscores the importance of protecting the privacy rights of individuals in the digital age. The court stated firmly that it would not allow the companies to share any user data and even suggested that Meta should leave India if it cannot adhere to the country's laws and Constitution. The court has ordered the Ministry of Electronics and Information Technology (MeitY) to be a party to the petitions. An interim order regarding the matter is expected on February 9.
The court voiced strong concerns about the exploitative nature of WhatsApp's policy, particularly its implications for the fundamental right to privacy. The bench criticized the privacy terms as being "so cleverly crafted" that they are incomprehensible to the average person, particularly those in rural areas or with limited education. The CJI questioned the very notion of user consent under such circumstances, calling the practice a "decent way of committing theft of private information". The court emphasized that it would not allow companies to force unequal agreements on consumers, and consent obtained through such means cannot be considered truly informed.
Solicitor General Tushar Mehta, representing the government, echoed the court's concerns, denouncing the policy as "exploitative" for its use of user data for commercial purposes. The court responded by stating, "If you can't follow our Constitution, then leave India. We won't allow any citizen's privacy to be compromised".
The Supreme Court is hearing appeals filed by Meta and WhatsApp against a judgment by the National Company Law Appellate Tribunal (NCLAT), which upheld the CCI's finding that WhatsApp had abused its dominant position. The CCI had imposed the penalty due to WhatsApp's "take-it-or-leave-it" privacy policy. The appeals challenge this ruling, with Meta and WhatsApp seeking relief from the imposed penalty and contesting the findings of abuse of dominance.