User Consent Compulsory For WhatsApp Data Sharing For Advertising And Non Advertising Purposes, Says NCLAT

The National Company Law Appellate Tribunal on Monday clarified that the consent and transparency safeguards laid down in its earlier ruling on WhatsApp’s 2021 privacy policy apply to all forms of user data collection and sharing, including both advertising and non advertising purposes.

The clarification came on an application filed by the Competition Commission of India, which had sought clarity on the scope of the remedial directions upheld by the tribunal in its November 4 judgment.

The appellate tribunal made it clear that WhatsApp and its parent company Meta cannot claim unilateral or open ended rights over user data under the guise of policy interpretation.

Allowing the application, the tribunal said, “On the basis of the above analysis, we allow the application of the Commission. It is clarified that the remedial directions contained in paragraphs 247.2.1 to 247.2.4 of the impugned order dated November 18, 2024, shall apply to WhatsApp user data collection and sharing for all non-WhatsApp purposes, including both non-advertising and advertising purposes.”

A bench led by Chairperson Justice Ashok Bhushan and Technical Member Arun Baroka underscored that user choice is the central principle governing data sharing. The tribunal reiterated that control over personal data rests with users and not with the platform.

“We had clearly held that users must retain the right to decide what data is collected, for which purposes and for how long,” the bench observed. It added that “any non essential collection or cross use, including advertising, can occur only with the concerned user’s express and revocable consent,” and stressed that WhatsApp “cannot assert unilateral or open ended rights over user data.”

Clarifying that the safeguards were never meant to be limited only to non advertising data, the tribunal rejected Meta and WhatsApp’s contention that the clarification imposed fresh obligations. “We do not find that this creates any additional burden or introduces new remedies. Through these directions, we have merely reiterated the core principle of removal of exploitation by restoring genuine user choice,” the tribunal said.

“Once users are provided optionality at any stage, their rights are protected for all times and the element of exploitation stands removed, which had been the issue with the 2021 WhatsApp policy,” it observed.

The clarification follows the tribunal’s November 4 ruling, in which it had granted partial relief to WhatsApp by setting aside the Competition Commission of India’s direction imposing a five year ban on sharing user data with Meta for advertising purposes. At the same time, the tribunal had upheld a penalty of over Rs 213 crore and confirmed that WhatsApp’s 2021 privacy policy amounted to abuse of dominance under the Competition Act.

In that judgment, the tribunal had held that the 2021 policy compelled users to accept extensive data sharing on a take it or leave it basis, leading to coercion and market denial for competing digital advertising firms. While the five year advertising ban was found to be unsustainable, the findings on abuse of dominance were left undisturbed.

The instant clarification addresses concerns raised by the CCI that the setting aside of the five year ban could be misread as excluding advertising related data sharing from consent safeguards. The tribunal said this was never its intent and emphasised that the operative directions must be read in line with the core findings.

The tribunal reiterated that restoring opt in and opt out choice with transparency and purpose limitation was essential to cure the abuse found in the 2021 policy. It added that users who agree to share data for optional features must also retain the freedom to withdraw such consent at any stage, even if that means losing access to those optional features.

Granting WhatsApp time to comply, the tribunal allowed the platform three months to bring about the necessary changes in line with the clarified directions.

Case Title:  Whatsapp LLC v CCI

Bench:  Chairperson Justice Ashok Bhushan and Technical Member Arun Baroka

Order Date: 15 December 2025