NCLAT Clarifies: User Data Optionality Applies to All WhatsApp Data Sharing Including Advertising Purposes

Background of the Matter

The National Company Law Appellate Tribunal (NCLAT) Delhi has issued a significant clarification regarding its earlier judgment concerning WhatsApp's data sharing practices. The tribunal clarified that remedial measures outlined in its previous order apply comprehensively to all forms of WhatsApp user data collection and sharing for non-WhatsApp purposes, encompassing both advertising and non-advertising uses.

The Competition Commission of India (Respondent No. 1) filed I.A. No. 6817 of 2025 seeking clarification on paragraph 264(c) of the tribunal's judgment dated 04.11.2025. The original judgment had set aside remedial directions mentioned in Para 247.1 of the Commission's impugned order dated 18.11.2024, while upholding directions contained in Para 247.2.1 to 247.2.4.

Key Facts of the Case

The Commission approached the tribunal requesting clarification that the remedial directions contained in Paras 247.2.1 to 247.2.4 of the impugned order dated 18.11.2024 would extend to WhatsApp user data collection and sharing for all non-WhatsApp purposes. This scope was intended to cover both advertising and non-advertising purposes without distinction.

The tribunal's earlier judgment dated 04.11.2025 had comprehensively upheld the Commission's findings that WhatsApp LLC and Meta Platforms Inc. violated provisions under Section 4(2)(a)(i) and Section 4(2)(c) of the Competition Act, 2002. The violations arose from WhatsApp's 2021 Privacy Policy implementation.

The original order identified two primary abuses: first, the imposition of unfair or discriminatory conditions upon users through a coercive "take it or leave it" policy framework, and second, practices that denied market access to Meta's competitors in the online display advertising sector.

Commission's Prayer for Clarification

The Competition Commission sought specific directions clarifying that remedial measures in Paras 247.2.1 to 247.2.4 would govern WhatsApp user data collection and sharing for all non-WhatsApp purposes. The Commission emphasized that this should include both advertising and non-advertising data sharing activities.

The Commission highlighted that paragraph 264(c) of the tribunal's judgment dated 04.11.2025 might create uncertainty regarding compliance obligations. The concern was that parties could interpret the judgment divergently - questioning whether remedial directions requiring user optionality and data transparency extend to advertising purposes or apply solely to non-advertising data sharing.

The Commission noted that Para 247.2 of the impugned order specifically addressed data collection and sharing for "purposes other than advertising." The application of these measures to advertising purposes was originally ensured through the second part of para 247.1, which provided that after expiry of the 5-year prohibition, remedial directions in para 247.2 would apply mutatis mutandis to advertising-related data sharing.

Arguments Advanced by WhatsApp LLC

WhatsApp LLC vigorously contested the Commission's clarification application, asserting that the judgment was unambiguous and required no modification or clarification. The company characterized the application as a disguised review petition rather than a genuine request for clarification.

Maintainability Challenge

WhatsApp contended that clarification applications serve only to remove ambiguity and cannot be utilized to modify, supplement, or revisit conclusions of a judgment absent such ambiguity. Where a judgment is complete, self-contained, and free from obscurity, no question of clarification arises, the company argued.

The company emphasized that the tribunal's previous orders refused to issue clarifications or modifications in the absence of ambiguity, explaining that the tribunal lacks power to modify its directions when no ambiguity or confusion exists.

Substantive Contentions

WhatsApp argued that paragraph 264(c) contains no ambiguity. The order expressly sets aside the remedy under paragraph 247.1 of the impugned order in its entirety. Therefore, the company maintained, no ambiguity exists requiring clarification, and the Commission's application should be dismissed at the threshold.

The company distinguished the tribunal's clarification order dated 1 May 2025 in the Google Play Store matter (Alphabet Inc. & Ors. v. Competition Commission of India & Ors, Competition Appeal (AT) No. 4 of 2023). WhatsApp emphasized that the factual matrix differed fundamentally. In the Google case, the tribunal issued clarification only because the judgment contained an obvious and inadvertent inconsistency - specifically, the tribunal had expressly upheld certain directions in one portion while inadvertently setting aside those same directions in the operative part.

Current Data Sharing Practices

WhatsApp brought to the tribunal's attention that it currently shares user data with Meta for advertising purposes only in limited scenarios involving optional features on the WhatsApp service. Access to WhatsApp service is not conditional upon users utilizing features involving data sharing for advertising purposes.

WhatsApp currently shares data with Meta for advertising purposes only when users choose to use optional features. Users can access the WhatsApp service without using these features. This framework, according to WhatsApp, aligns with the tribunal's reasoning in setting aside paragraph 247.1 - that once users receive the option to freely opt in or opt out, the direction becomes redundant.

Specific examples of limited data sharing include:

• Click-to-WhatsApp (CTWA) advertisements where Facebook/Instagram users choose to interact with advertisements and further choose to have conversations with businesses on WhatsApp
• Users are not obliged or incentivized to use such features
• Users retain freedom to avoid optional features if they do not want such data sharing
• WhatsApp does not share personal messages, call logs, or contacts with Meta

Review in Disguise

WhatsApp asserted that the Commission seeks review of the judgment under the guise of a clarification application, though clarification applications cannot be used to relitigate matters or alter judgment outcomes. The tribunal has conclusively held that it lacks power to review its own judgments, as established in Union Bank of India v. Dinkar T. Venkatasubramanian, 2023 SCC OnLine NCLAT 283.

The company argued that if the Commission harbored reservations about the judgment, the appropriate remedy would be appealing to the Supreme Court under Section 53T of the Competition Act, 2002. Instead, the Commission attempts to disguise a review request as a "clarification," cherry-picking phrases from the judgment to suggest the tribunal intended to extend remedies in paragraph 247.2 to advertising-related data sharing.

Additional Remedies Concern

WhatsApp contended that the Commission seeks imposition of additional remedies for advertising-related data sharing, specifically the requirement to provide additional details on user data sharing with Meta in WhatsApp's privacy policy (Paragraph 247.2.1). However, the judgment paragraphs cited by the Commission relate to users' ability to provide and revoke consent for data sharing (Paragraphs 241.1, 241.3, 241.4), not transparency and disclosure obligations.

The company emphasized that extending the transparency obligation in paragraph 247.2.1 to advertising-related data sharing directly contradicts remedies prescribed by the Commission itself. The impugned order clearly stated that after expiry of the 5-year ban, directions in paragraph 247.2 would apply mutatis mutandis to advertising-related data sharing except paragraph 247.2.1.

Business Impact Arguments

WhatsApp highlighted that the tribunal's interim order dated 23.01.2025 granted interim relief by staying the advertising-related remedy under Paragraph 247.1 while permitting remedies related to non-advertising purposes to proceed. The interim order's distinction between "for advertising purposes" and "for purpose other than advertising" underscored the tribunal's deliberate intention to maintain differentiation between advertising-related and non-advertising-related remedies.

The company warned that additional obligations may create numerous technical challenges, requiring potential changes to product architecture. Given the integrated nature of Meta's infrastructure powering its products, implementing such additional obligations may adversely impact user experience and rollout of new and innovative features on WhatsApp service.

Request for Extended Timeline

Without prejudice to its primary submissions, WhatsApp requested that if the tribunal allows the Commission's application, it should not be required to comply immediately. WhatsApp sought appropriate time for compliance, with a minimum of three months from any order allowing the application.

The company referenced the Digital Personal Data Protection Rules, 2025 (DPDP Rules) and Digital Personal Data Protection Act, 2023 (DPDP Act), noting that the Government provided Data Fiduciaries an eighteen-month timeframe to build architecture for providing user notices and implementing legal basis for data processing. This demonstrates governmental recognition that modifying systems for compliance with user notice and legal basis requirements constitutes a complex, time-consuming undertaking.