TaxTMI 
TaxTMI 
2025 (12) TMI 1317
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....ber (Technical)] I.A. No. 6817 of 2025 is filed by the Respondent No. 1 - Competition Commission of India seeking clarification in the conclusion drawn in paragraph 264(c) of this Appellate Tribunal's judgment dated 04.11.2025, whereby remedial directions contained in Para 247.1 of the Applicant's impugned order dated 18.11.2024 have been set aside and remedial directions contained in Para 247.2.1 to 247.2.4 have been upheld. 2. I.A. No. 6817 of 2025, filed by Respondent No.1 - Competition Commission of India (CCI) has following prayers in the above-mentioned I.A: "a. Issue directions clarifying paragraph 264(c) of this Hon'ble Tribunal's judgment dt. 04.11.2025 to the extent that remedial directions contained in Paras 247.2.1 to Paras 247.2.4 of the Applicant's impugned order dt. 18.11.2024 will apply to WhatsApp user data collection and sharing for all non-WhatsApp purposes, including non-advertising and advertising purposes; and b. Pass any other Order(s) which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." 3. The Applicant - CCI has brought to our notice the findings of this Appe....
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....r WhatsApp data for non-WhatsApp purposes; (ii) obligating Appellants to provide WhatsApp users with an opt-out of data sharing for non-WhatsApp purposes, along with a revocable consent mechanism; (iii) obligating Appellants to provide WhatsApp users a detailed explanation of the scope and purpose of data collection. However, this Hon'ble Tribunal set aside the remedial direction contained in Para 247.1, i.e. prohibiting Appellants from collecting and sharing WhatsApp user data for the non-WhatsApp purpose of advertising, for a period of 5 years. 4. While upholding remedial directions contained Para 247.2.2 (i.e. obligating Appellants to not make WhatsApp usage conditional on users consenting to sharing their WhatsApp data for non-WhatsApp purposes), this Hon'ble Tribunal specifically held as under: "241.1 [...] We need to note 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. [...]" (Emphasis su....
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....as been mentioned specifically and repeatedly as an example of the Appellants practice under the 2021 policy of using WhatsApp data for non-WhatsApp purposes. It also brings to our notice that this Appellate Tribunal has repeatedly emphasized that "any non-essential collection or cross-use can occur only with the concerned user's express and revocable consent", while referring to advertising. Therefore, Applicant claims that it is abundantly clear that while this Appellate Tribunal has set aside the 5-year ban on using WhatsApp user data for advertising purposes, it has unequivocally extended the application of remedial directions contained in Paras 247.2.1 to 247.2.4 of the impugned order to data collection and sharing by Appellants for non- WhatsApp purposes, including non-advertising and advertising purposes. 5. The Applicants brings to our notice that this Appellate Tribunal in para 264(c) has not only set aside the first part of 247.1 which imposed a 5-year ban on WhatsApp user data collection and sharing by Appellants for advertising purpose but also the second part which provided that after lapse of the 5-year ban, remedial direction contained in para 247.2.2 to 247.2....
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..... 10. WhatsApp LLC claims that the commission seeks to impose additional obligation which exceed what the judgment and the impugned order envisaged. They also contend that the existing features involving advertising related data sharing already respects user choice and users are not obliged to use such features; they can simply use not to use optional features such as click to WhatsApp and remain free to continue using the WhatsApp service. This framework fully satisfies the principle underlying the remedies prescribed in the impugned order and renders the commission's request infructuous. They also contend that the Commission cannot seek to extend additional remedies on WhatsApp and Meta at this belated stage especially as it could adversely impact WhatsApp and Meta. 11. Both WhatsApp and Meta contained that an application for clarification is maintainable only to remove ambiguity and cannot be used to modify, supplement or revisit the conclusions of a judgment in the absence of such ambiguity. Where a judgment is complete and self-contained, and free of obscurity, no question of clarification arises. They contend that this Appellate Tribunal has previously refused to issue ....
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.... 16. Both WhatsApp and Meta contend that this Appellate Tribunal had ample opportunity to modify the remedies in line with the CCI Application, but it did not do so. Both parties were heard at length and after a considered view this Appellate Tribunal did not modify the remedies prescribed under paragraph 247.2 of the impugned order to make them applicable to advertising related data sharing. Instead the judgment expressly upholds the remedies prescribed in paragraph 247.2 of the impugned order as is without any extension or modification. Further the Appellate Tribunal did not impose broader obligations which the Commission now seeks through the present application. 17. It was also brought to our notice that WhatsApp currently does not share user data with Meta for advertising purposes except in limited scenarios involving the use of optional features on the WhatsApp service i.e. access to the WhatsApp service is not conditional upon users use of features involving data sharing for advertising purposes. It clarifies that WhatsApp currently shares data with Meta for advertising purposes only if a user chooses to use optional features, and a user can use the WhatsApp service witho....
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....7.2.1 of the Impugned Order to advertising-related data sharing. This confirms that the CCI Application is in substance a request for review of the Judgment. 21. They also claim that extending the transparency and disclosure obligation in paragraph 247.2.1 of the impugned order, which applies only to data sharing for non-advertising purposes to advertising related data sharing directly contradicts the remedies prescribed by the Commission in the impugned order. Specifically, the impugned order clearly stated that after expiry of the 5-year ban on data sharing for advertising purposes, the directions in paragraph 247.2 of the impugned order would apply mutatis mutandis to advertising related data sharing except paragraph 247.2.1. By this application, the Commission requests that the Appellate Tribunal to extend all the remedies issued under paragraph 247.2 (including paragraph 247.2.1) of the impugned order to data sharing for advertising purposes. This is imposition of obligations that the Commission itself did not contemplate and is impermissible. 22. WhatsApp and Meta claims that WhatsApp user data sharing for advertising purposes is limited and occurs only if the users cho....
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....nd 247.2 are with respect to "for advertising purposes" and "for purpose other than advertising" underscores the Hon'ble Tribunal's deliberate intention to maintain a distinction between advertising-related remedies and non- advertising-related remedies. Indeed, the Hon'ble Tribunal segregated and selectively stayed the advertising-related remedy under paragraph 247.1 of the Impugned Order because it "may lead to the collapse of business model" [Paragraph 17, Interim Order]. 26. It claims that remedies issued under paragraphs 247.1 and 247.2 of the Impugned Order addressed two different categories - data sharing for advertising purposes and data sharing for non-advertising purposes and it clearly intended this distinction to remain when granting the stay. there is nothing in the judgment which suggests that this reasoning was abandoned or superseded. 27. WhatsApp and Meta brings to our notice that Commission has not advanced an argument that if paragraph 247.1 (advertising related remedies) is set aside that paragraph 247.2 (non-advertising related remedies) should apply to advertising related data sharing. Commission had sufficient time to raise this contention but is being ....
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....frame of eighteen months to build the architecture for providing user notices and implementing a legal basis for data processing in compliance with the DPDP Act and DPDP Rules. This clearly demonstrates that the Government itself recognizes that modifying systems to build for compliance with user notice and legal basis requirements is a complex and time-consuming undertaking. 31. In light of this, this it is claimed that this Appellate Tribunal should provide WhatsApp with sufficient time to comply in the event it is inclined to allow the CCI Application. Appraisal 32. Heard Counsels of both sides and also perused the material placed on record. 33. On the issue of maintainability, both WhatsApp and Meta have relied on the judgment of Union of Bank of India Vs. Dinkar T. Venkatasubramanian, 2023 SCC OnLine NCLAT 283, decided on 25.05.2023 wherein it has been held that clarification applications cannot be used to re-litigate a matter or alter the outcome of a judgment. The relevant portion are as follows: "27. In view of the foregoing discussion, we answer the questions referred to this Bench in following manner: I: This Tribunal is not vested with any p....
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....delve into the issue 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. 39. Perusal of our judgement dated 5.11.2025 reveals that, in our conclusions on abuse we have clearly stated as follows: o "Section 4(2)(a)(i): Imposition of unfair or discriminatory conditions on users, through a "take it or leave it" policy WhatsApp forced users into accepting expansive data sharing as a condition to using WhatsApp, without offering an effective opt-out. We find that mandatory acceptance of broad and vague data sharing terms amounted to coercion and unfair condition on users. We thus find violation of Section 4(2)(i) by WhatsApp by introduction of the WhatsApp Policy 2021 and its subsequent conduct." [Para 232.1] o "Section 4(2)(c): Practices that limit or restrict market access of competitors -we find that cross-platform data sharing (between WhatsApp and Meta) enhanced Meta's advantage in the display advertising market, creating an entry barrier for rival firms in digital advertising that did not have equivalent access to WhatsApp data.....
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....y non- essential collection or cross-use (like advertising etc.) can occur only with the concerned user's express and revocable consent. 41. While dealing with directions of five-year ban, we had noted in our findings that once users have been given option to freely decide to opt in or opt out, as in other reliefs, this direction becomes redundant. We need to note 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. 42. While this being so, in our conclusions we have noted in the judgment dated 04.11.2025 that: "The directions issue....
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.... accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise that is to say while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be reconsideration of merits of the matter to come to a conclusion that it would have been better an....
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....s. Then there is no requirement of these exclusive directions." 47. We have 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. We have noted that once a user is given option to freely decide to opt in or opt out, the direction in paragraph 247.1 becomes redundant because the user has choice to opt in or opt out at any point of time. We have also noted that the core principle is to remove exploitation by restoring using choice and opt in or opt out irrespective of whether it is for advertising purposes or non-advertising purposes will provide user a choice and help remove exploitation. We have also noted that "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) can occur only with the concerned users expenses and revocable consent. The Appellant (Meta and WhatsApp) 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 ....
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....viding any explanation, as is noted in in this Clause. And this is not intended by us. Such a construction does not align with the core principle which we have upheld for all users for the purposes of data sharing which has been stated by us many times in our order. If "except 247.2.1" is also set aside, which has happened inadvertently, it would imply that the core principle will not be applicable for sharing of data for advertising purposes. Even at the cost of repetition it would a give go by to the core principle to remove exploitation of the users by restoring user choice. And it will not give the users a choice to decide what data is collected, for which purposes, and for how long. It will also give a go by to the principle that non-essential collection or cross-use (like advertising etc.) can occur only with the concerned user's express and revocable consent. 49. In the facts and circumstances of the case, we therefore find that the operative part in the judgment is not in sync with the findings. Accordingly, it is clarified that, even though our findings, which was based on the extracted para of impugned order of the Commission, and led us to set aside 247.1 in entir....