CCI moves NCLAT over WhatsApp Meta data sharing, Dec 2 hearing set

New Delhi: The Competition Commission of India (CCI) has moved the National Company Law Appellate Tribunal (NCLAT) seeking clarity on whether WhatsApp can share user data with parent company Meta for advertising, after the tribunal recently lifted a five-year bar on such sharing.

Barely a fortnight after NCLAT’s November 4 order, the regulator has filed an application asking the tribunal to spell out how its privacy safeguards should apply when WhatsApp data is used for targeted ads.

In its November 18 filing, the CCI has pointed to portions of the judgment that stress user consent, transparency and a unified consent framework. It has asked whether those principles are meant to apply uniformly to all categories of data, including information shared for advertising, or whether ad-related data can be treated differently.

The commission has argued that the language of the judgment could be read to mean that once a common consent architecture is in place, there is no distinction between advertising and non-advertising uses of user data, an interpretation that could have implications for how platforms design their consent flows.

A bench of NCLAT Chairperson Justice Ashok Bhushan and technical member Arun Baroka has issued notice on the CCI plea while granting Meta and WhatsApp time to respond. The matter has been listed for further hearing on December 2.

Separately, the tribunal has also sought responses on an application by Meta and WhatsApp seeking redaction of what they have described as confidential portions of the November 4 judgment.

The dispute has its roots in WhatsApp’s 2021 privacy policy update, which triggered widespread criticism over mandatory data sharing with Meta group entities, including Facebook and Instagram. The updated policy removed the option for users to opt out of certain data flows, effectively presenting a take-it-or-leave-it choice for continuing to use the app.

Acting suo motu, the CCI opened an investigation into whether the policy amounted to an abuse of dominance in the over-the-top messaging market. In November 2024, it imposed a Rs 213.14 crore penalty on Meta and WhatsApp, found them guilty of exploiting their market power and restrained them from sharing user data with Meta affiliates for five years. The order also required WhatsApp to clearly spell out why data is collected and how it is used.

Meta and WhatsApp challenged the ruling before NCLAT. In January 2025, the tribunal granted interim relief by staying the five-year bar on data sharing, saying an immediate halt could disrupt the platform’s free-to-use business model.

On November 4, NCLAT delivered its final judgment. It upheld the fine and most of the behavioural remedies prescribed by the CCI, but set aside the blanket prohibition on data sharing for advertising. The tribunal held that if users are given meaningful choice through opt-in and opt-out mechanisms, and if there is adequate transparency on data use, an across-the-board ban is not warranted.

The appellate body also affirmed that the CCI is competent to examine anti-competitive conduct in relation to data and privacy, but it did not endorse the regulator’s conclusion that Meta had leveraged WhatsApp’s dominance to unfairly strengthen its online advertising business.

During the hearing on the clarification plea, senior advocate Kapil Sibal, appearing for Meta, and senior advocate Mukul Rohatgi, representing WhatsApp, opposed the CCI’s move. They argued that the November 4 judgment was a clear and reasoned order, leaving no scope for ambiguity, and suggested that if the regulator was aggrieved, the proper course would be to seek a review rather than ask for clarification.

The CCI, however, has requested that NCLAT decide its plea before any appeal is filed in the Supreme Court, saying a direct challenge to the apex court could render the questions it has raised academic.

Beyond the immediate litigation, the exchange highlights the wider debate over how Indian competition law will sit alongside emerging privacy norms. While NCLAT has insisted on consent, purpose limitation, and options for users to refuse data sharing for non-core services, its decision to lift the long-term bar on ad-related data flows has fuelled concerns in sections of the privacy community.

For WhatsApp’s more than half a billion users in India, the outcome means the platform can move toward restoring fuller data integration with Meta’s advertising systems, but only within a framework that demands clearer disclosures and more granular choices than those offered in the controversial 2021 policy.