SC directs Meta, WhatsApp to file compliance affidavit; dismisses stay applications

New Delhi: The Supreme Court of India on Monday heard appeals filed by Meta Platforms and WhatsApp challenging a Rs 213.14 crore penalty imposed by the Competition Commission of India (CCI) over WhatsApp’s 2021 privacy policy. The penalty was upheld by the National Company Law Appellate Tribunal (NCLAT).

A Bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi took up the matter, which has previously seen sharp observations from the Court against Meta and WhatsApp. In earlier hearings, the Court had remarked that it would not allow the exploitation of Indian users’ personal data.

At the outset, senior advocate Kapil Sibal, appearing for the appellants, informed the Court that WhatsApp had filed an affidavit detailing its compliance position. “Your Lordships had asked WhatsApp to file an affidavit. We have filed, saying what we do and don’t do. There’s no question of our violating any law,” Sibal submitted.

He said that while the companies had initially sought a stay on certain directions issued by NCLAT, they have now decided to comply with the tribunal’s clarified directions by March 16 and no longer wish to press their interim applications for stay.

Chief Justice Surya Kant observed that if the appellants were complying with the NCLAT directions, their affidavit ought to be placed in the main appeal, even if they were not pressing the stay application.

Senior advocate Madhavi Divan, appearing for the CCI, clarified that the compliance being referred to was with NCLAT’s “clarified” directions. Justice Joymalya Bagchi noted that the compliance would be without prejudice to the companies’ rights in the main appeal.

Recording Sibal’s statement, the Court dismissed the interim applications seeking a stay as “not pressed”, while clarifying that this would be without prejudice to the issues raised in the main appeal. The Bench directed the appellants to file a compliance affidavit.

In a further development, the Court directed that the affidavits filed by WhatsApp and Meta regarding their privacy policy may be examined by the CCI, and a response be placed on record. The Bench also issued notice on an interlocutory application filed by the CCI.

During the hearing, Divan argued that there was “clearly sharing of data” and pressed for an interim arrangement. The Chief Justice responded that the matter would be notified for a further date.

Sibal also pointed out that Parliament has now enacted the Digital Personal Data Protection Act (DPDP Act), under which the companies are required to comply, suggesting that the regulatory framework governing data protection has since evolved.

The matter will now proceed in the main appeal, with the compliance affidavit and CCI’s response expected to shape the next stage of proceedings.