Meta Argues CCI Made “Seven Misses” in WhatsApp Privacy Policy Order
Senior Advocate Amit Sibal, appearing for Meta before the National Company Law Appellate Tribunal (NCLAT), argued that the Competition Commission of India’s (CCI) findings against WhatsApp’s 2021 privacy policy suffer from “seven major misses.”
According to Sibal, these are the gaps in CCI’s order:
- Action based on misinformation – He said the CCI acted on rumours that WhatsApp messages would stop being end-to-end encrypted, though this was untrue.
- Wrong claim on data sharing – The 2021 update did not expand WhatsApp’s data sharing with Meta beyond the 2016 policy, which had already been upheld. It only made the policy clearer and more transparent.
- Error on opt-out mechanism – The CCI wrongly assumed users had no choice. In fact, users can opt out of data sharing for advertising in limited cases.
- No evidence from users or rivals – The regulator did not speak to a single user or advertiser, nor did it prove that competitors were harmed.
- Wrong application of law – The CCI ignored its own practice by claiming there was no need to prove dominance in the relevant market, and based its decision on hypothetical future risks.
- Ignoring benefits of personalisation – The pro-competitive effects of personalised advertising for users and advertisers were acknowledged but then disregarded.
- Unjustified remedies – The sweeping measures imposed “in perpetuity” were neither necessary nor proportionate.
In November 2024, the CCI had fined Meta ₹213.14 crore, ruling that WhatsApp’s “take-it-or-leave-it” approach to its 2021 policy abused dominance and violated the Competition Act, 2002. The regulator also banned WhatsApp from sharing user data with Meta or its affiliates for five years and required clearer disclosures.
Meta and WhatsApp challenged this decision. In January 2025, the NCLAT stayed both the fine and the five-year ban, observing that a ban could “collapse the business model of WhatsApp,” which is offered free of cost. The fine was stayed on condition that 50% of the amount be deposited.
Earlier, Senior Advocates Kapil Sibal, Mukul Rohatgi, and Arun Kathpalia had also argued on behalf of Meta and WhatsApp. Kathpalia is continuing arguments before the Tribunal.
