In a hearing that could redefine the economics of the Internet in the world’s most populous digital market, a three-judge panel led by Chief Justice Surya Kant indicated that “consent” may be little more than a legal fiction in the age of monopolies. The court’s comments go beyond privacy; they get to the heart of Meta’s business model and question whether a platform’s market dominance makes the “choice” to share data essentially coercive.
When and where did the friction start?
The friction started in 2021, when WhatsApp released a take-it-or-leave-it update to its privacy policy. The update allowed for greater data sharing between the messaging app and its parent company, Meta. While WhatsApp insisted that end-to-end encryption kept messages private, the Competition Commission of India (CCI) saw the move as an abuse of dominance. It argued that for the average Indian user, ‘leaving’ WhatsApp is not a viable option as it is the country’s digital town square. The CCI has fined Meta ₹213.14 crore ($25 million) – an amount that is chump change for a trillion-dollar company, but a significant shot towards regulation.
Meta then appealed the decision to the National Company Law Appellate Tribunal (NCLAT), which handed down a nuanced, albeit controversial, verdict last year. The NCLAT upheld the CCI’s finding that Meta had abused its market position. However, it has significantly ‘softened’ the blow of regulation.
While it upheld the financial penalty, the NCLAT set aside a crucial CCI directive that would have barred Meta from sharing user data with other entities for advertising purposes for a period of five years.
The rationale of the NCLAT was rooted in a traditional interpretation of business integration. It seemed that while the method of obtaining consent was coercive, data sharing between a parent company and a subsidiary was a standard business practice in the digital age.
The tribunal likely feared that a total five-year moratorium on data sharing would be a disproportionate “structural solution” that could break the technical synergy of Meta’s platforms. Moreover, with the Digital Personal Data Protection (DPDP) Act, 2023 looming on the horizon, the NCLAT seemed content to let privacy-specific legislation handle the nuances of data flows, rather than a competition regulator using the blunt instrument of an antitrust ban.
Why did Meta appeal to the Supreme Court?
Unhappy with the punishment and verdict of NCLAT, Meta finally reached the Supreme Court. However, the Supreme Court seemed in no mood for compromise. Chief Justice Kant’s response to Meta’s lawyers — that opting out of WhatsApp in India is akin to “opting out of the country” — captures the “network effect” trap that competition regulators worldwide are struggling to dismantle.
Yet the most provocative argument came from Justice Joymalya Bagchi, who shifted the debate from privacy to “value.” India’s Digital Personal Data Protection (DPDP) Act, 2023 focuses primarily on the sanctity of personal information. But Judge Bagchi noted a vacuum in the law regarding data “rent sharing.” If Meta uses the behavioral trends of a rural Indian to sell targeted ads, who owns the profits derived from that data?
This data-as-property logic aligns India more closely with the European Union’s Digital Services Act than with the more laissez-faire approach of the United States. By suing the Ministry of Electronics and Information Technology (MeitY), the court forced the government to consider whether privacy is sufficient, or whether the economic “value” of a citizen’s digital footprint requires a new form of sovereign protection.
What happens next?
The Advocate General’s comment – that users are “not just consumers, but also products” – reflects a growing fatigue with the “free” internet model. When a user discusses medications with a doctor and minutes later receives a pharmaceutical advertisement, the court does not consider this a feat of engineering, but an infringement.
Meta’s defense remains rooted in the “cleverly crafted” language of its terms and conditions. But the Chief Justice’s “simple question” as to whether a domestic worker could adopt such a policy reminds us that in a country with varying levels of digital literacy, transparency is not the same as understanding.
The court has now issued an ultimatum: Meta must make a promise to stop sharing personal data, otherwise the case will be dismissed and ‘very strict conditions’ will be imposed. Now that the case is heading towards preliminary indications on February 9, the message is clear. In the eyes of the Indian judiciary, a billion ‘silent consumers’ are no longer willing to be the raw material for Meta’s bottom line. The era of ‘decent theft’ may be coming to an end.
Published – Feb 4, 2026 08:16 AM IST
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