WhatsApp, which is all but a household name today for Indians, could be potentially facing a departure from one of its largest markets. The nation’s Supreme Court delivered a scathing rebuke to Meta Platforms and WhatsApp on February 3 during a hearing on appeals related to the company’s 2021 privacy policy update. A three-judge Bench led by CJI Surya Kant warned that if Meta cannot comply with constitutional protections for privacy, it should “leave India.”
The court described WhatsApp’s policy as creating “manufactured consent” through a “take it or leave it” ultimatum, effectively coercing India’s massive user base—estimated at over 500 million active users—into accepting data-sharing arrangements with other Meta entities. Justice Joymalya Bagchi characterized the approach as a “decent way of committing theft of private information,” while the Chief Justice asserted that “we will not allow to share a single piece of information” and emphasized that “the right to privacy is not negotiable.”
During the February 3 hearing, Solicitor General Tushar Mehta, representing the government, criticized the policy as “exploitative,” arguing that users were being turned into “products” whose behavioral data was monetized for advertising. The Chief Justice illustrated the issue with a hypothetical: a user consulting a doctor via WhatsApp about symptoms, only to receive targeted medical advertisements shortly afterward. Meta’s senior counsel, Mukul Rohatgi and Akhil Sibal, defended the policy by emphasizing that messages are end-to-end encrypted, that users provide prior consent, and that an opt-out mechanism exists
To recap, the hearing arose from appeals by WhatsApp and Meta challenging orders from the Competition Commission of India (CCI) and the National Company Law Appellate Tribunal (NCLAT). In November 2024, the CCI imposed a penalty of ₹213.14 crore, ruling that WhatsApp abused its dominant position by forcing users to accept the policy or forfeit access to the service. The tribunal upheld the fine but lifted a five-year bar on data sharing, prompting both sides to appeal to the Supreme Court. Now, Justice Bagchi highlighted gaps in India’s Digital Personal Data Protection Act, 2023 (DPDP Act), noting that while it addresses privacy, it does not fully regulate the commercial “value” of shared data or behavioral profiling for advertising.
WhatsApp’s 2021 privacy policy update informed users that certain data, such as phone numbers, device information, interaction logs with businesses, and metadata, could be shared with Meta’s family of companies (including Facebook and Instagram) for purposes including service improvement, security, advertising, and product development. While end-to-end encryption protected the content of personal chats, the policy allowed collection and sharing of non-content data, particularly in interactions with businesses on the platform. Users faced a binary choice: accept the terms to continue using WhatsApp or delete their account entirely. There was no granular opt-out mechanism for data sharing while retaining full functionality. The company later clarified that personal messages remained private and unreadable by WhatsApp or Meta, but critics argued the lack of meaningful choice undermined genuine consent, especially given WhatsApp’s near-ubiquitous presence in India for personal, family, business, and even government communications.
Obviously, an outright exit by WhatsApp from India remains unlikely in the near term. The country represents the platform’s largest market by users, and departure would represent a massive strategic and financial setback for Meta. However, the Supreme Court’s strong language signals that continued operations require meaningful alignment with constitutional privacy protections. For now, the court has directed WhatsApp and Meta to file an affidavit by February 9, 2026, providing a “clear and categorical undertaking” that they will not share user data in violation of privacy rights. Failure to comply could result in dismissal of their appeals against the NCLAT order, weakening their legal position in India.
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