WhatsApp user data sharing for advertising and other non-essential purposes-clarification allowed requiring express, revocable opt-in/opt-out consent

The dominant issue was whether the regulator's application sought a permissible clarification of the appellate judgment or an impermissible review/re-litigation. The Tribunal held that, to advance the ends of justice, it could consider the application where the requested "clarification" concerned the scope of operative remedial directions and did not amount to reopening merits, applying the core principle that user data use beyond essential WhatsApp functions requires express, revocable consent and must preserve opt-in/opt-out choice with purpose limitation. It rejected the contention that optional-feature, limited advertising-related sharing rendered the application infructuous, since users must be able to opt out at any stage. The clarification was allowed, and the remedial directions were held applicable to all non-WhatsApp purposes, including both advertising and non-advertising uses.

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1. ISSUES PRESENTED AND CONSIDERED

(i) Whether the Tribunal had jurisdiction to entertain the application seeking "clarification", including where the relief may amount to reviewing or correcting its earlier decision.

(ii) Whether there existed a mismatch/ambiguity between the Tribunal's findings (reasoning) and the operative conclusions regarding the applicability of remedial directions to advertising-related data sharing, warranting correction/clarification.

(iii) Whether, on a proper alignment of findings and operative directions, the remedial directions requiring user choice/optionality and transparency (paras 247.2.1 to 247.2.4) apply to all non-WhatsApp purposes, including advertising; and whether time should be granted for compliance.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Jurisdiction/maintainability to entertain clarification (including review power)

Legal framework: The Tribunal considered that the Competition Act expressly confers power on the Appellate Tribunal to review its decisions (Section 53-O(2)(f)).

Interpretation and reasoning: The Tribunal rejected the objection that it lacked jurisdiction to revisit its own decision. It held that authorities relied upon to deny such power were from a different statutory context and were not determinative for proceedings under the Competition Act. Given the express statutory power to review, the Tribunal held it was not precluded from examining whether the "clarification" request was, in substance, seeking a review, and could proceed if required to advance the ends of justice.

Conclusion: The Tribunal held it had jurisdiction to entertain the application and was not barred from reviewing/correcting its decision under the Competition Act where warranted.

Issue (ii): Existence of mismatch between findings and operative portion warranting clarification/correction

Interpretation and reasoning: The Tribunal examined its earlier findings emphasizing the "core principle" that exploitation is removed by restoring user choice, and that "any non-essential collection or cross-use (like advertising etc.)" may occur only with the user's "express and revocable consent," coupled with transparency and purpose limitation. It contrasted these findings with the operative conclusion which had set aside the direction in para 247.1 "in entirety," thereby also setting aside wording that excluded the application of para 247.2.1 to advertising-related sharing. The Tribunal found this produced an inconsistency: the operative wording could be read as granting an unintended exception for advertising-related sharing from the transparency/explanation obligation, which would not align with the repeatedly affirmed core principle applicable to non-essential cross-use including advertising.

Conclusion: The Tribunal held there was a mismatch between the findings and the operative portion due to an inadvertent inclusion that misaligned the operative directions with the intended reasoning, justifying clarification/correction.

Issue (iii): Scope of remedial directions after clarification; applicability to advertising; compliance time

Interpretation and reasoning: The Tribunal reasoned that its setting aside of the five-year ban was based on lack of rationale for the duration and because restoring effective opt-in/opt-out, transparency, and purpose limitation makes an absolute, time-bound prohibition redundant. The Tribunal held that its reasoning did not carve out any exception for advertising-related data sharing; rather, advertising was repeatedly treated as an example of "non-essential" cross-use requiring express and revocable consent. It therefore clarified that deleting the words "except 247.2.1" from the operative conclusion was necessary to align the operative part with the findings. The Tribunal rejected the contention that this clarification imposed "additional remedies," holding it merely brought the operative portion into sync with the already-decided core principle and upheld remedial framework. The Tribunal also held that even where advertising-related sharing arises through optional features, user rights require an ability to opt out at any stage; the Tribunal focused on protecting user choice and preventing unilateral/open-ended assertion over user data. Finally, the Tribunal granted time to implement necessary changes.

Conclusions: (a) The remedial directions in paras 247.2.1 to 247.2.4 apply to WhatsApp user data collection and sharing for all non-WhatsApp purposes, including non-advertising and advertising purposes. (b) The operative conclusion is corrected by deleting the words "except 247.2.1". (c) Three months' time is granted to comply with the clarified directions.

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