SC raises monopoly, data consent issues in Meta-WhatsApp case
Court questions meaningful user consent during hearing on WhatsApp’s 2021 privacy policy and data sharing with Meta
Last Updated: Feb 04, 2026, 18:35 IST4 min
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The Supreme Court on Tuesday questioned whether users can meaningfully consent to data sharing when they have little real alternative but to stay on a platform, during a hearing on WhatsApp’s privacy policy.
The bench led by Chief Justice Surya Kant was hearing appeals by Meta Platforms Inc and WhatsApp against a Rs213.14 crore penalty imposed by the Competition Commission of India (CCI) over WhatsApp’s 2021 privacy policy update. While the court has not ruled on the merits, its questioning went beyond policy wording to focus on user behaviour, advertising incentives and the lack of meaningful choice for users of dominant platforms.
“You have created a monopoly. The consumer has no choice,” the court said to Meta’s representatives.
During the hearing, the judges pointed to WhatsApp’s near-universal usage, strong network effects and high switching costs. The bench also flagged the opacity of privacy policies and the absence of a clear opt-out option, particularly for users who may not understand complex English-language terms.
‘Take-it-or-leave-it’ consent
Shreya Suri, partner at CMS IndusLaw, said the court appeared concerned with how large platforms use user dependency to drive commercial outcomes.
“Based on media reports, the Supreme Court’s line of questioning signals a deeper concern with how large digital platforms leverage user behaviour and dependency to drive commercial outcomes, as users fear losing network access despite alternatives,” Suri said. She added that the bench appeared to view user addiction as enabling coercive “take-it-or-leave-it” consent, particularly where exit from the platform carries social and professional costs.
Akshayy S Nanda, partner at Saraf and Partners, said the court drew a distinction between genuine consent and what it described as “manufactured consent”. “Users remain trapped by network effects and high switching costs that make exit practically impossible,” he said. “In such cases, formal acceptance of terms cannot legitimise data practices because refusal is not economically realistic.”
Monopoly and behavioural exploitation
The court also questioned how platforms monetise user behaviour and metadata—even where message content is encrypted—raising concerns over behavioural advertising and profiling.
Puneet Bhasin, cyber lawyer and privacy and data protection expert, said the court’s remarks point to deeper concerns around behavioural conditioning and manipulation enabled by dominant digital platforms.
“The Supreme Court is addressing a crucial issue of user behaviour monitoring, manipulation and deep-seated conditioning rooted in WhatsApp and other Meta platforms,” Bhasin said. He argued that addiction to social media and messaging platforms creates long-term risks, particularly as their use deepens across age groups in India.
Bhasin said the court’s approach could also be read as a signal for legislative intervention. “Subtle conditioning is capable of erasing independent thinking completely. In my view, this is a cue for the legislature to intervene to ensure that people and future generations are not conditioned in ways they do not consciously perceive,” he said.
On monopoly, Bhasin said the court appeared to recognise that WhatsApp’s dominant position, combined with its addictive nature, leaves users with little bargaining power. “Despite the presence of alternative messaging apps, WhatsApp’s monopoly has remained. Users agree to unfavourable terms because they want to use the platform and there is no granular option that allows limited data access while continuing to use the service,” he said, adding that this creates a “no-bargain situation” that enables data and behavioural exploitation.
However, Parthsarathi Jha, partner at Economic Laws Practice, cautioned against reading definitive conclusions into oral remarks, saying the hearing should not yet be treated as a shift in legal doctrine.
“The oral exchange between the court and the parties is not law. The Supreme Court has not decided on any issue,” Jha said. According to him, the court’s immediate concern appeared to be information asymmetry and whether users are being subjected to take-it-or-leave-it policies, rather than a settled view on monopoly-driven exploitation.
Are existing laws enough?
Suri said the Competition Act addresses unfair conditions and denial of market access, but was not originally designed to regulate privacy harms. While the CCI’s order treats data sharing as anti-competitive conduct, privacy enforcement remains fragmented.
She pointed out that the Digital Personal Data Protection Act, 2023, mandates unconditional, informed and unambiguous consent, but will not come into force until May 2027. “Any aggrieved user is effectively remediless in the interim, and enforcing constitutional privacy rights against large corporates remains challenging,” she said.
Bhasin added that consent standards under data protection law require a granular approach. “Consent has to be granular and data only necessary for using the application has to be collected,” he said.
“Any additional data requires explicit consent, and even if a user refuses consent for data that is not required to use the service, the platform must still provide access. It cannot be a take-it-or-leave-it concept,” he said, adding that this principle is not new and is reflected in the European Union’s General Data Protection Regulation.
Jha, however, said the data protection framework already addresses many of the court’s concerns, including consent requirements and the obligation to provide notices in all constitutionally recognised languages.
The Supreme Court has adjourned the matter to February 9, when it is expected to pass interim directions. It has also impleaded the Union government as a party and asked Meta and WhatsApp to file affidavits explaining their data-sharing practices.
First Published: Feb 04, 2026, 18:43
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