NCLAT reserves order on CCI plea to extend WhatsApp privacy safeguards to ad data

New Delhi: The National Company Law Appellate Tribunal (NCLAT) has reserved its order on an application filed by the Competition Commission of India (CCI) seeking clarification on whether privacy and consent safeguards laid down for WhatsApp’s non-advertising data should also apply to user data shared for advertising purposes.

According to a report by legal news portal LiveLaw, the CCI moved the clarification plea after the NCLAT’s November 4 judgment struck down a five-year bar on WhatsApp sharing user data with Meta for advertising, while upholding a stricter consent framework and transparency requirements for non-service-related data sharing.

The matter was heard by a bench comprising NCLAT Chairperson Justice Ashok Bhushan and Technical Member Arun Baroka, which reserved orders on Tuesday.

In its November 4 ruling, the tribunal set aside the CCI direction that had imposed a blanket five-year prohibition on the use of WhatsApp user data for advertising. At the same time, it endorsed safeguards requiring WhatsApp to spell out what categories of user data are shared with Meta entities, link each category to a specific purpose, ensure that non-service-related data sharing is not a condition for using the service in India, and provide the same choices to all users, including those who accepted the 2021 privacy policy update.

The CCI has now asked the tribunal to clarify whether, in light of that reasoning on user privacy and consent, the same framework should apply to data flows used for advertising. LiveLaw reported that CCI's counsel insisted it was “not seeking a review but only a clarification” to align the operative order with the tribunal’s findings.

Senior counsel Kapil Sibal, appearing for Meta, opposed the plea, arguing that the NCLAT has no power of review and cannot use a clarification application to cure alleged ambiguities or reintroduce directions the tribunal had consciously set aside. Counsel for WhatsApp supported this position, submitting that the platform already offers an in-app consent mechanism and that the CCI had not earlier asked for the specific form of consent it is now pressing for.

The CCI’s side contended that there was an inconsistency between the judgment’s reasoning—treating advertising and non-advertising data under a unified consent requirement—and the operative portion, which removed all safeguards relating to advertising data. The regulator argued that this gap could be addressed under the tribunal’s statutory powers without rewriting the order.

After hearing both sides, the NCLAT reserved its decision in the case titled WhatsApp LLC v. CCI.