CCI moves NCLAT to seek clarification in WhatsApp case

New Delhi, Nov 19 (PTI) Competition watchdog CCI has approached the NCLAT to seek clarity over its recent judgment in the WhatsApp case, and asked whether the order implies that user consent is needed in cases where data is used for advertising or for non-advertising purposes.

Earlier this month, the appellate tribunal granted partial relief to WhatsApp after setting aside a section of the order by the fair trade regulator that had banned the instant messaging app from sharing data with Meta Platforms for advertising purposes for five years.

However, the NCLAT had retained Rs 213 crore penalty on the social media platform and upheld WhatsApp’s 2021 policy breach of Section 4(2)(a)(i) and 4(2)(c) as it constituted abuse of dominance by the instant messaging app and created a situation of market denial.

The matter had come before a two-member bench of the NCLAT on Tuesday, which had passed the order on November 4, 2025, on which it had issued notice to Meta and WhatsApp, whose counsel were present in the tribunal.

The National Company Law Appellate Tribunal (NCLAT) has directed to list the matter on November 25, for the next hearing of the Competition Commission of India's (CCI) plea seeking clarification.

When contacted, CCI counsel Samar Bansal told PTI they want a clarification as to whether user consent is required if his data is used for advertising purposes or for non-advertising purposes.

"Now, in our understanding, what the NCLAT has basically said, in a nutshell, is that user consent is paramount and that regardless of whether the data is being used for advertising purposes or for any other non-advertising purposes, please take user consent. That is what the NCLAT holds in different parts of the order," he said.

However, in Para 264, the concluding part of the judgement, the learned court has said that Para 247.1 of the original CCI order is set aside and 247.2 is upheld. The effect of this is that now user consent is required for WhatsApp sharing user data for non-advertising purposes, but there is nothing being spoken of at all, one way or the other, for advertising purposes.

"So, we have simply moved an application that the court must clarify what it meant, and actually, what its order already says is that user consent must be taken regardless of whether WhatsApp is sharing data, user data with other Facebook companies for advertising purposes or for non-advertising purposes. That is the one simple clarification we have asked," he said.

NCLAT, in its 184-page-long order, said that cross-platform data sharing between WhatsApp and Meta enhanced Meta’s advantage in the display advertising market, creating an entry barrier for rival firms in digital advertising that did not have equivalent access to WhatsApp data.

However, it had also said CCI "order holding breach of Section 4(2)(e) is not sustainable", as it cannot be concluded that Meta has leveraged its dominance in one market (OTT messaging) to protect or extend dominance in another (online display advertising), as WhatsApp and Meta are distinct legal entities.

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. PTI KRH MBI KRH BAL BAL