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of <h1>WhatsApp user data sharing for advertising and other non-essential purposes-clarification allowed requiring express, revocable opt-in/opt-out consent</h1> The dominant issue was whether the regulator's application sought a permissible clarification of the appellate judgment or an impermissible ... Seeking clarification in the conclusion drawn in paragraph 264(c) of this Appellate Tribunal's judgment - obligating Appellants to provide WhatsApp users with an opt-out of data sharing for non-WhatsApp purposes - HELD THAT:- Meta and WhatsApp rely upon Punjab National Bank Vs. Ashish Chhawchharira & Ors. [2023 (5) TMI 16 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI] wherein it was held that in the absence of any ambiguity, explaining that “while exercising [its] jurisdiction under Rule 11, [the Hon’ble Tribunal is] not empowered to modify [its] direction as there is no ambiguity or confusion.” And since there is no ambiguity, no clarification application is maintainable and the Appellate Tribunal is prohibited from reviewing the judgment which is in the guise of clarification - the judgmens relate to matters of Insolvency and Bankruptcy Code, 2016, which may not be relevant for a matter relating to Competition Act. Therefore, the judgment is of no assistance to Meta and WhatsApp. Whether in the facts and circumstances of the case, the Applicant is seeking clarification on the judgment or in the guise of clarification it is a review and relitigating the case? - HELD THAT:- The core principle is to remove exploitation by restoring user choice. Users must retain the right to decide what data is collected, for which purposes, and for how long. Any non-essential collection or cross-use (like advertising etc) can occur only with the concerned user's express and revocable consent. The Appellant cannot assert unilateral or open-ended rights over user data. This takes care of the abuse found in 2021 Policy i.e., coercive, take-it-or leave-it consent by re-establishing opt-in/opt-out which will be with desired transparency, and purpose limitation, while still allowing lawful, user- approved uses. Then there is no requirement of these exclusive directions. Section 53(O)(2(f) does not prohibit to consider even review, in a case the clarification goes beyond the limits of clarification and falls within review. Accordingly, to advance the ends of justice, we proceed to consider this application of the Commission for issuing clarification - it is observed that the remedies were classified into two categories, one for sharing of data for advertisement purposes for which 5 years’ ban has been imposed and the other for sharing of data for other than advertising purposes. Both Meta & WhatsApp claim that WhatsApp currently shares user data with Meta from optional features on the WhatsApp service for advertising purposes in limited scenarios and for this reason CCI Application is infructuous. Even in limited scenario that WhatsApp currently shares user data with Meta for advertising purposes – such as CTWA – users are not obliged to use such features - As a consequence of the core principle, if users accept to share data for using optional features, they should also be having option to opt out of data sharing at any stage and in that case they will not be able to use the optional features and this very well aligns with the core principle of data sharing. Thus, it is clarified that “remedial directions contained in Paras 247.2.1 to Paras 247.2.4 of the Applicant's impugned order dated 18.11.2024 will apply to WhatsApp user data collection and sharing for all non-WhatsApp purposes, including non-advertising and advertising purposes” - the application of the Commission allowed. Issues: (i) Whether remedial directions contained in Paras 247.2.1 to 247.2.4 of the Commission's impugned order dated 18.11.2024 apply to WhatsApp user data collection and sharing for all non-WhatsApp purposes, including advertising purposes; (ii) Whether the Commission's application under Rule 11 / inherent powers seeking clarification (which may amount to review/rectification) is maintainable and whether the operative part should be aligned with the findings.Issue (i): Whether Paras 247.2.1 to 247.2.4 apply to WhatsApp user data collection and sharing for all non-WhatsApp purposes including advertising.Analysis: The judgment's findings repeatedly state the core principle of restoring user choice by ensuring users may decide what data is collected, for which purposes, and for how long; and that any non-essential collection or cross-use (including advertising) can occur only with the user's express and revocable consent. The operative part inadvertently excluded para 247.2.1 by retaining the text 'except para 247.2.1' when setting aside para 247.1. The remedial classification in the findings was treated generically as applicable to both advertising and non-advertising non-WhatsApp purposes, making the exclusion inconsistent with the reasoning. The clarification seeks to remove this inconsistency so that the transparency, opt-in/opt-out and related remedies apply uniformly to non-WhatsApp uses.Conclusion: In favour of Respondent. 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 advertising purposes.Issue (ii): Whether the Commission's application for clarification is maintainable (or impermissible review) and whether the Tribunal may rectify the operative part to align it with findings.Analysis: The Appellate Tribunal's powers under Section 53-O(2)(f) permit review of its decisions. Authorities on rectification permit correction of inadvertent clerical or operative mismatches so that the operative order reflects the court's intended conclusion, without re-opening merits beyond inadvertent slips. The present application points to an inadvertent misalignment between the reasons (findings) and the operative clause (which unintentionally excluded para 247.2.1). The request is limited to aligning the operative part with the detailed findings and does not amount to re-adjudication of merits beyond rectification.Conclusion: In favour of Respondent. The clarification application is maintainable insofar as it rectifies the inadvertent operative inconsistency; the words 'except 247.2.1' are deleted so that Paras 247.2.1 to 247.2.4 apply to all non-WhatsApp purposes including advertising.Final Conclusion: The operative order is clarified to remove the inadvertent exception and to reflect the judgment's core principle that non-essential collection or cross-use of WhatsApp user data (including for advertising) requires users' express and revocable consent; the Commission's clarification application is allowed and WhatsApp is granted three months to comply with the directions.Ratio Decidendi: Where findings and operative provisions conflict due to an inadvertent omission or clerical slip, the Appellate Tribunal may rectify the operative part to align with its reasoned findings; substantively, any non-essential cross-use of user data (including advertising) is permissible only with the concerned user's express and revocable consent, accompanied by appropriate transparency and purpose limitation.
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