Sharing generic user preferences not breach of privacy: WhatsApp

Senior counsel Mukul Rohatgi, who appeared for WhatsApp, argued that the app merely tells Meta how many times a user goes to a restaurant but not what they eat

Bengaluru Social media platform WhatsApp told the National Company Law Appellate Tribunal (NCLAT) on Tuesday that sharing basic account details and generic user preferences with Meta cannot be regarded as a violation of users’ right to privacy.

The dispute arises from a January 2021 notification issued by WhatsApp informing users about its revised terms of service and privacy policies (REUTERS)

Senior counsel Mukul Rohatgi, who appeared for WhatsApp, told NCLAT that the only information WhatsApp which too is owned by Meta, shares with the latter, is “generic, non-content data” inferred from “user interactions” with businesses on the platform, such as an “interest in luxury cars, frequent restaurant engagement, or regular travel.”

Rohatgi argued that WhatsApp merely tells Meta how many times a user goes to a restaurant but not what they eat. It tells Meta how many times a counsel argues before the Tribunal, but not the content of their actual arguments, he added.

This user metadata does not include the actual content of messages and therefore cannot amount to a breach of privacy, the senior counsel argued.

“Personal preferences such as who your friends are, where you go, what exactly you eat, constitute privacy. If I (WhatsApp) am only telling (Meta) that those in the age group of 50 to 70 prefer to buy a Mercedes car, that does not constitute any breach of privacy. That is not an offence,” Rohatgi said.

Rohatgi made the submissions before Tribunal members Justice Ashok Bhushan and technical member Arun Baroka. NCLAT was hearing the appeals filed by WhatsApp and Meta challenging a 2024 order of the Competition Commission of India (CCI) that imposed ₹213.14 crore penalty on Meta for abuse of dominance.

The dispute arises from a January 2021 notification issued by WhatsApp informing users about its revised terms of service and privacy policies. The new policy stated that effective February 8 the same year, users were required to accept all terms, including an expanded scope of data collection as well as mandatory data sharing with Meta companies, to continue using WhatsApp.

CCI took suo motu cognisance of the issue and concluded that the 2021 policy update constituted an imposition of “unfair condition” under the Companies Act since it compelled users to accept the data collection and sharing terms.

Last November, CCI imposed a penalty of ₹213.14 crore on Meta for abusing its dominant position, and prohibited WhatsApp from sharing user data collected on its platform with other Meta companies and Meta company products for advertising purposes for five years.

In January this year, NCLAT stayed the five-year ban this January while directing Meta to deposit 50% of the penalty amount.

On Tuesday, WhatsApp defended its data sharing practices by claiming that its users’ personal message content remains protected by end-to-end encryption and that such content is inaccessible even to Meta itself.

It said it does not share the content of private messages, calls, photos, videos, documents, or real-time locations, which remain protected by end-to-end encryption. This, Rohatgi said, means that nothing in WhatsApp’s policy amounts to a “criminal breach of a user’s right to privacy.”

Besides, Rohatgi argued, “while India is a country of crores of people, not one person had come out on the streets, protesting” against WhatsApp’s policy update. He said that the 2021 policy update pertained only to optional business-related functionalities, like using Meta’s hosting services, and not personal chats.

“As everyone has seen the ads, even WhatsApp cannot read your messages,” he said.

When the Tribunal asked how the argument of breach of privacy was then raised when probe agencies get a hold of a citizen’s phone records, messages etc, Rohatgi said in such cases a probe agency, such as the “Enforcement Directorate can read the messages” only if it gets a user to share his or her “physical key” that enables encryption.

“That key is on a user’s device and WhatsApp cannot access it so it can not read the messages or hear users’ conversation,” Rohatgi said.

The Tribunal will continue hearing the arguments on Wednesday.