The Competition Commission of India (CCI) has approached the National Company Law Appellate Tribunal (NCLAT) seeking clarity on its November 4 judgment that has set aside the earlier five-year prohibition on WhatsApp sharing user data with Meta for advertising purposes.
The regulator has asked whether the tribunal’s emphasis on privacy and consent has also meant that safeguards upheld for non-advertising data sharing should apply to data used for advertising.
As per media reports, Meta and WhatsApp have been granted time to file their formal objections, with the matter listed for hearing in December. The tribunal has also issued notice on another application filed by WhatsApp and Meta seeking redaction of confidential parts of the judgment.
In the November 4 ruling, the NCLAT has struck down the CCI’s earlier direction imposing a blanket five-year ban on WhatsApp’s use of user data for advertising, holding that such a restriction has not been necessary once users have been given a meaningful opt-in/opt-out choice. However, the tribunal has upheld key safeguards, including detailed explanations on what data WhatsApp shares with Meta entities, restrictions on making non-service-related data sharing a condition for using WhatsApp in India, and ensuring that all users, including those who accepted the 2021 update, receive the rights and choices specified for non-service-related data sharing.
The CCI has argued that the tribunal’s reasoning has effectively removed the distinction between advertising and non-advertising data use, since user consent has been positioned as the central principle. On this basis, it has sought clarity on whether the upheld safeguards should automatically extend to advertising-related data sharing as well.
Senior Advocates Kapil Sibal and Mukul Rohatgi, appearing for Meta and WhatsApp, have opposed the plea, arguing that the judgment has been a speaking order that contains no ambiguity requiring clarification. They have submitted that if the CCI believes the judgment contradicts itself, the correct remedy has been to file a review petition rather than seek clarification, and that the tribunal’s order must stand as delivered.
The CCI has urged the tribunal to hear its clarification plea before any potential appeal is filed in the Supreme Court, stating that such an appeal could render its application infructuous. Earlier, the NCLAT has upheld the Rs 213-crore penalty imposed on Meta and WhatsApp for abusing dominance in the market for smartphone-based OTT messaging services, agreeing with the CCI that the 2021 WhatsApp policy update has forced users into expanded data-sharing with Meta and enabled competitive advantage in the advertising market.
