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In Summary

  • SC heard Meta/WhatsApp appeals against NCLAT upholding CCI's ₹213.14 crore penalty over WhatsApp's 2021 privacy policy.
  • The policy allowed data sharing with Facebook group companies for advertising, imposing a take-it-or-leave-it choice on users.
  • Issues included commercial exploitation, abuse of dominant position, privacy erosion, and lack of clarity, contrasting with DPDP Act, 2023 and Puttaswamy judgment.

In Summary

SC was hearing appeals by Meta Platforms & WhatsApp against the NCLAT’s decision upholding Competition Commission of India (CCI)’s ₹213.14 crore penalty over WhatsApp’s 2021 privacy policy.

What is WhatsApp's 2021 privacy policy?

  • The policy allows WhatsApp to share users' data with Facebook and all its group companies for the purposes of commercial advertising and marketing.
  • Take-it-or-Leave-it framework: Under the policy, WhatsApp users have two options: Agree to share their personal information with Facebook or delete their WhatsApp accounts.

Issues observed in WhatsApp's 2021 privacy policy

  • Commercial exploitation of personal data: SC noted that personal data is used to analyze behavioral trends, which Meta then leverages for a dominant advantage in online advertising on other platforms like YouTube or email.
  • Abuse of dominant position:  Policy abused its dominant market position by imposing unfair conditions and discriminating against those who did not accept data sharing.
  • Erosion of privacy by Data sharing: By significantly expanding internal sharing of personal data with Facebook and related companies for advertising and business purposes.
  • Lack of Clarity: SC emphasized that the policy's complex/vague language is unintelligible to common/poor citizens.

Steps taken in India for data protection

  • Digital Personal Data Protection (DPDP) Act, 2023: To provide for processing of digital personal data in a manner that recognizes both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes.
    • SC pointed out DPDP Act,2023 does not contain provisions for "rent sharing” i.e. issue of value put on data shared by users to companies.
  • Judicial Oversight: Supreme Court’s Puttaswamy judgment (2017) recognized the right to privacy as a fundamental right under Article 21.
  • Justice B.N. Srikrishna Committee (2017): Examined data protection issues and recommended a comprehensive law for data protection.
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Article Sources

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https://indianexpress.com/article/legal-news/supreme-court-slams-whatsapp-meta-over-monopoly-forced-data-sharing-10511106/
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Justice B.N. Srikrishna Committee (2017)

A committee formed by the Indian government to examine data protection issues and recommend a legal framework for data protection. Its recommendations heavily influenced the drafting of the DPDP Act, 2023.

Puttaswamy judgment (2017)

A landmark Supreme Court of India judgment that recognized the Right to Privacy as a fundamental right under Article 21 of the Constitution. This is crucial for assessing the privacy implications of AI in law enforcement.

Digital Personal Data Protection (DPDP) Act, 2023

This Indian legislation governs the processing of personal data collected through digital means, including data digitized from offline sources. It aims to establish the Data Protection Board of India and promote a SARAL approach (Simple, Accessible, Rational, and Actionable) for data protection.

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