User’s consent mandatory for WhatsApp for collection of data: NCLAT

Appellate tribunal NCLAT on Monday clarified that its order in the WhatsApp matter on privacy and consent safeguards also applies to user data collection and sharing for non-WhatsApp purposes, including non-advertising and advertising. Passing an order over an application moved by CCI seeking clarification over the previous order passed by NCLAT, the appellate tribunal said, “Appellant (WhatsApp and Meta) cannot assert unilateral or open-ended rights over user data.

“We had clearly held that ‘users must retain the right to decide what data is collected, for which purposes and for how long. Any non-essential collection or cross-use, like advertising, etc. Can occur only with the concerned users’ express and revocable consent,” said NCLAT. The Tribunal further stated that once users are given the option to opt in or opt out of data sharing at any stage, whether using regular features or optional features, their rights are protected for all time, and exploitation is removed, which has been an issue with the 2021 WhatsApp policy.

Based on the above analysis, we therefore allow the application of the Commission. Accordingly, it is clarified that “remedial directions contained in Paras 247.2.1 to Paras 247.2.4 of the Applicant’s impugned order dated 18.11.2024 will apply to WhatsApp user data collection and sharing for all non-WhatsApp purposes, including non-advertising and advertising purposes,” said a two-member NCLAT bench comprising Chairperson Justice Ashok Bhushan and Member Arun Baroka.

In November last year, the CCI imposed a penalty of Rs 213.14 crore on social media major Meta with respect to the WhatsApp privacy policy update done in 2021. Meta Platforms and WhatsApp challenged this order before the NCLAT, which, in January this year, passed an interim order, staying the five-year ban imposed by the CCI on data-sharing practices between WhatsApp and Meta for advertising purposes, offering a breather to the tech giant.