The Supreme Court on Tuesday (February 3, 2026) said it will not permit instant messaging platform WhatsApp and its parent company, Meta, to breach the right to privacy of millions of their “silent consumers” in India through the sharing and commercial exploitation of personal data.
At one point during the hearing, a three-judge Bench headed by Chief Justice of India Surya Kant, addressing Meta and WhatsApp, compared the sharing of private data to a “decent way of committing theft”, saying by now “you must have taken away millions of bytes of data”.
WhatsApp and Meta, led by senior advocates Mukul Rohatgi and Amit Sibal, vehemently objected to the court’s observations, maintaining that users could ‘opt-out’ from having their data shared. They said prior consent was cardinal. WhatsApp stressed that messages sent and received on its platform were end-to-end encrypted.
Justice Joymalya Bagchi, who along with Justice Vipul M. Pancholi formed part of the Bench, pointed out that every silo of data regarding an individual, irrespective of whether it was private or not, had value.
The judge pointed out that the Digital Personal Data Protection (DPDP) Act of 2023, India’s first comprehensive legal framework for digital personal data privacy, covered only the factor of privacy. There seemed to be nothing in the law on the sharing of the data value of a consumer.
“The DPDP Act only addresses privacy. We would like to examine the rent-sharing of data. Behavioural trends and tendencies can be utilised and monetised. Your (WhatsApp’s) parent company can leverage it for the purpose of online advertising. When we see these companies, one a parent and the other a subsidiary, the leading role is advertising… All over the world, the judiciary would have to go for a more intensive and innovative oversight into these platforms,” Justice Bagchi observed.
‘We are not only consumers, but also products’
The Chief Justice gave an example of a person communicating online with his doctor about medicines, only to get advertisements or notifications about medical services available minutes later.
Solicitor General Tushar Mehta, present in the court room, said “our private data is not only sold, but it is commercially exploited. We are not only consumers, but also products”.
The Bench impleaded the Centre, through the Ministry of Electronics and Information Technology, as a party in the case.
Justice Bagchi said the Centre has to compare the DPDP Act and European Union’s (EU) strict online governance rules under the Digital Services Act.
“The EU rules consider not only privacy but value also. I may have personal data of variously graded privacy. Privacy is lost as soon as I share certain data. Is it an acceptable jurisprudential idea that once a data is shared there is no value for that data anymore?” Justice Bagchi asked.
Mr. Mehta, while assuring to convey the point to the government, said some foreign jurisdictions made sharing of data even taxable. The Chief Justice added that there were jurisdictions which made sharing of personal data prone to heavy damages.
Appeal against NCLAT order
The court was hearing petitions filed by Meta and WhatsApp against a National Company Law Appellate Tribunal (NCLAT) decision last year to uphold a ₹213.14 crore penalty imposed by Competition Commission of India.
The anti-competition regulator had found WhatsApp’s ‘take-it-or-leave-it’ approach in its 2021 privacy policy an abuse of its market dominance. It found the prior consent sought from users to share their data with Meta “manufactured”. The CCI had concluded that users were forced to share data for continued access to WhatsApp messaging services. In appeal, the NCLAT had set aside the regulator’s direction barring Meta and WhatsApp from sharing user data with other Meta group entities for five years though it retained the Rs. 213.14 crore penalty. Meta and WhatsApp had moved the apex court against the NCLAT decision.
Is it ethical to compel users to give consent to share their personal data?
On Tuesday (February 3), the social media conglomerate and the online messaging platform was caught by surprise when the hearing took an unexpected turn with the apex court questioning the very ethicality, if not the constitutionality, of “compelling” users to consent to sharing of their private data.
“What is the choice for consumers? They are told to either walk out of WhatsApp or share their data… You have complete monopoly in the market. We will not allow you to share a single word of people’s personal data… Are you ready to give an affidavit from your management undertaking this, otherwise we will dismiss your case… There is no question of sharing data. How can you take away the right to privacy of people like this?” Chief Justice Kant addressed the senior advocates for the online entities.
Mr. Rohatgi said users did have a choice to opt-out. “What ‘opt out’? Then you opt out of the country,” Chief Justice Kant retorted.
Chief Justice Kant asked the online entities whether a poor street vendor or a person living in rural areas of Tamil Nadu or Bihar would be able to navigate the complicated and “cleverly-crafted” language of consent and be able to take an informed decision.
“We will examine everything from the perspective of a common consumer of this country. How many people will understand the legal implications you impose. Where is the question of ‘opt out’? In actuality, there is no such option. By now you must have taken out millions of data. In a way, this is a decent way of committing theft in a way. We will not allow this to happen… You have to give an undertaking or we will impose very strict conditions,” Chief Justice Kant addressed the online entities.
Admitting the petitions and posting the case for interim directions on February 9, the Chief Justice posed a “simple query” to Mr. Rohatgi and Mr. Sibal, “Will the domestic help at your houses understand this policy? You cannot take advantage of these millions of silent consumers who have no voice. You have addicted consumers. Everyone is on this [WhatsApp],” Chief Justice Kant observed.
Published – February 03, 2026 12:12 pm IST
