The Competition Commission of India (CCI) has asked the National Company Law Appellate Tribunal (NCLAT) whether privacy safeguards upheld in its November 4 judgment regarding the competition regulator’s 2024 Meta-WhatsApp order apply to data shared for advertising purposes, as per a LiveLaw report.
Notably, the Tribunal has allowed Meta and WhatsApp time to submit objections, and listed the matter for December. However, both tech platforms pushed back immediately with senior advocates Mukul Rohatgi and Kapil Sibal arguing that the judgment is a “speaking order” which already lays out the Tribunal’s reasoning.
They said no clarification is legally maintainable because the CCI is attempting to “re-argue” the matter through the backdoor. According to them, if the CCI believes the judgment contradicts itself, the correct remedy is a review petition, not a clarification motion.
Importantly, as per digital economy regulation expert Navneet Sharma the CCI’s plea directly challenges the Tribunal’s underlying logic. He said the judgment “does not preserve a strong real distinction in practice between service- and advertising-related data sharing”, and once consent becomes the core lever, “the lines become hazy”.
Why the CCI Wants Clarification
The CCI argues that the Tribunal places consent at the centre of the framework. Moreover, the Commission says this logic weakens any distinction between service-related and advertising-related data sharing. According to the CCI, the Tribunal’s reasoning implies that WhatsApp must provide identical disclosures, purpose-linking and user choice across all data categories shared with Meta.
Sharma agreed that the judgment leans toward a unified approach. “The judgment leans strongly toward a unified consent-based framework for data sharing across the Meta ecosystem,” he said. Although he noted that it does not declare consent sufficient in dominance cases. Furthermore, Sharma cautioned that “consent alone risks overlooking structural imbalance” unless the regulatory framework includes antitrust protections.
Notably, the CCI wants this clarification before any possible Supreme Court (SC) appeal, arguing that the issue could otherwise become unnecessary. In this context, Sharma said that the CCI’s clarification request is procedurally sound from a regulatory implementation perspective because authorities often seek clarifications to avoid ambiguity. However, he noted that Meta may still challenge the plea by arguing that a speaking order must be reviewed or appealed rather than clarified.
Sharma also explained that the CCI is trying to lock in a favourable interpretation of the order’s scope before the matter moves to the SC, particularly on whether safeguards apply to advertising data. According to him, this would strengthen enforcement and reduce uncertainty once the case reaches the apex court.
However, Sharma said that the current debate also…
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