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The Supreme Court has issued one of its strongest warnings yet to global tech giants, pulling up WhatsApp and its parent company Meta over what it called coercive and opaque data-sharing practices that strike at the heart of India’s constitutional right to privacy. Hearing a clutch of appeals linked to WhatsApp’s 2021 privacy policy, the top court made it clear that commercial interests cannot override citizens’ fundamental rights, especially when consent is obtained through a “take-it-or-leave-it” framework.

The case arises from a penalty of Rs 213.14 crore imposed by the Competition Commission of India on Meta over WhatsApp’s 2021 privacy policy. The regulator held that WhatsApp abused its dominant position by forcing users to accept expanded data sharing with Meta companies as a condition for continuing to use the messaging service.

The Chief Justice described the impugned practices as a “mockery of constitutionalism”, questioning how consent can be meaningful when users are compelled to accept a policy to retain access to a near-essential communication service. The court underlined that India’s constitutional framework does not permit private corporations to dilute fundamental rights through cleverly drafted policies.

One of the court’s main concerns was how consent was taken under WhatsApp’s 2021 policy. Justice Bagchi said the issue was not just data sharing, but what he described as “manufactured consent” - where users agree because they have little real choice.

The judges were also unconvinced by the opt-out options cited by WhatsApp, pointing out that privacy policies are usually long, technical and difficult for most users to fully understand. The court pointedly remarked that an ordinary user - whether a street vendor or someone living in a remote village - cannot reasonably be expected to understand such “crafty language”, let alone assess its long-term implications.

Rejecting the argument that WhatsApp is a free service, the court observed that users effectively “pay” with their personal data. The Bench said personal information has clear commercial value and is routinely monetised through targeted advertising and behavioural analysis.

In situations like this, the court said, consent given under the fear of being shut out of a dominant platform cannot really be called voluntary.

During the hearing, the judges also questioned how large tech companies collect and use data beyond the actual content of encrypted messages. While WhatsApp argued that personal chats remain protected through end-to-end encryption, the court noted that metadata and user behaviour can still be analysed and monetised.

The court stressed that no business model, however innovative or profitable, can function at the cost of citizens’ rights. It warned that addiction to digital platforms cannot be used to justify coercive practices or erosion of privacy protections. The Bench has also sought categorical undertakings from the companies on their data-sharing practices.

At the joint request of senior counsel appearing in the matter, the Union of India has been impleaded as a party, allowing the government to place its position on data protection and competition law before the court. The case is listed next for further hearing on February 9, when the court is expected to clarify the interim regime that will govern WhatsApp’s operations in the meantime.