CLARIFICATION OR REVIEW? ANALYSING NCLAT’S META–WHATSAPP CLARIFICATION

This post is authored by Prabhas Kumar and Surya Prakash Swain, 1st-year and 2nd-year B.A. LL.B. (Hons.) students respectively at Gujarat National Law University, Gandhinagar

INTRODUCTION

The maxim interest reipublicae ut sit finis litium underscores the State’s interest in the finality of litigation. Yet, ironically, this principle has been challenged by the recent National Company Law Appellate Tribunal’s (NCLAT) order dated 15 December 2025, issued as a “clarification” to its 4 November 2025 judgment in Meta Platforms Inc. v. Competition Commission of India (“Meta Platforms”).

The NCLAT delivered its primary verdict in Meta Platforms, concerning WhatsApp’s 2021 Privacy Policy (“the November judgment”). The Tribunal upheld the CCI’s finding that the mandatory “take-it-or-leave-it” policy amounted to abuse of dominance under Section 4 of the Competition Act, 2002 (“the Act”), and affirmed the penalty of Rs 213.14 crores. However, it set aside the direction prohibiting WhatsApp from sharing user data with Meta for advertising for five years, holding that such a blanket ban was disproportionate in the absence of concrete economic evidence of harm in the display advertising market. This part of the ruling was widely read as a major victory for Meta.

The victory, however, was short-lived. On 18 November 2025, CCI moved a Miscellaneous Application seeking clarification on whether the mandatory opt-out obligations extended to advertising-linked data. In response, through an order dated December 15, 2025, the NCLAT effectively reversed its own relief (“the Clarification”). It directed WhatsApp to implement a granular opt-out mechanism for all users, mandating that data sharing cannot be a condition for accessing the service. By replacing the ban with a mandatory opt-out, the Tribunal did not formally revive the prohibition but moved significantly closer to it in commercial effect. If users meaningfully opt out, Meta’s ability to exploit cross-platform advertising data is substantially restricted, narrowing the gap between the two regimes. Unsurprisingly, Meta and WhatsApp, on 14 January 2026, have approached the Supreme Court (SC) challenging the NCLAT’s decision in the WhatsApp privacy-policy matter, including the post-judgment “clarification” on safeguards.

This blog first explains why the Clarification appeared necessary by identifying the enforcement gap created by the November judgment and how the granular opt-out mechanism attempts to reconcile competition regulation with privacy standards. It then examines whether such a substantive shift could legally occur through a “clarification” under Section 53-O and, finally, evaluates the institutional risks of diluting finality and bypassing the appellate route under Section 53-T.

THE DICHOTOMY OF CLARIFICATION AND REVIEW

A. What the November Judgment Actually Decided

The problem with the clarification is not with its holding. Rather, the issue lies in the route the Tribunal chose to reach that outcome. To understand the why, first, it is important to recall what the NCLAT had already decided on 4 November.

In its November judgment, the Tribunal carefully examined abuse of dominance under Section 4 of the Competition Act. It agreed with the CCI that WhatsApp’s 2021 Privacy Policy imposed unfair conditions on users and amounted to exploitative abuse under Section 4(2)(a)(i). It was noted that the consequence of integration of WhatsApp data with Meta’s broader ecosystem would result in raised entry barriers for rival players, and therefore applied Section 4(2)(c) on denial of market access.

However, it rejected the charge of leveraging as claimed (Section 4(2)(e)). It noted that although WhatsApp is a dominant entity within the messaging market, Meta is not a dominant party within the online display advertising market. This line of reasoning directly impacted the form of reliefs granted. Therefore, the Tribunal struck down the CCI’s five-year data sharing prohibition as disproportionate and instead, preferring a behavioural compliance-based approach that required a clear, mandatory disclosure of data use and “express, revocable user consent”. This led to the ban being scrapped, but the compliance obligations nonetheless persisted. This was therefore a deliberate and reasoned judicial pronouncement, and certainly not akin to any accidental omission or clerical slip.

However, the November judgment fell short of expectations. Despite the Tribunal upholding WhatsApp’s guilt for imposing unfair conditions under Section 4(2)(a)(i), the removal of the advertising data ban left the market toothless against an identical data-based policy being continued. Despite behavioural obligations remaining, the order lacked any specific restriction on advertising-linked data, meaning that Meta could simply pay the penalty while having significant leeway to continue with its data-driven monetisation model. Within digital platform markets, behavioural remedies generally fail as users rarely ever exercise consent-based choices against dominant services, thereby allowing exploitative conditions to persist despite on-paper compliance. This gap also sat uneasily with the Digital Personal Data Protection Act, 2023, which requires consent to be free, specific, informed, and revocable. Especially, in the context of a clearly dominant platform, a mandatory “take-it-or-leave-it” policy doesn’t offer any meaningful choice, making the absence of an opt-out mechanism particularly significant.

The December Clarification alters this balance. It does so by explicitly including disclosure and user-choice obligations to advertising-linked data now requiring WhatsApp to create a granular and enforceable opt-out system for Meta’s advertising ecosystem. From a public interest perspective, this improves user protections. However, in practical and commercial terms, it comes very close to the restriction that the Tribunal had removed only weeks earlier. Thus, making the procedural question unavoidable.

B. When Clarification Starts Becoming Review

The CCI approached the Tribunal through a clarification application under Section 53-O of the Competition Act. Section 53-O does recognise limited rectificatory and review jurisdiction. However, Indian procedural law has consistently drawn a line between correcting obvious mistakes and reopening concluded reasoning. Clarification is meant to address drafting slips, unintended omissions, or what the law calls “mistakes apparent on the face of the record.” Section 53-O(2)(f) does expressly empower the Tribunal to review its decisions, but that power is ordinarily exercised through a formal review petition. A clarification application is not designed to re-examine remedies in a substantive manner.

The Supreme Court has repeatedly protected this boundary. In Assistant Commissioner, Income Tax v. Saurashtra Kutch Stock Exchange Ltd. (2008), the Court held that only a “patent, manifest and self-evident error” can be corrected under rectification. If an issue requires elaborate reasoning, or if two legal views are possible, it cannot be changed under the cover of rectification. Similarly, in Jayalakshmi Coelho v. Oswald Joseph Coelho (2001), the Supreme Court made it clear that clarification powers are confined to accidental slips and should not become a route to rewrite substantive reasoning.

Even the NCLAT itself, in its five-member bench decision in Union Bank of India v. Dinkar T. Venkatasubramanian, although delivered in the IBC context, warned against turning recall or clarification into a “backdoor review” jurisdiction. The present case may rightly be distinguished because Section 53-O of the Competition Act does expressly provide review power.

The concern becomes clearer when seen against the appellate structure of the Competition Act. If the CCI believed that the remedy granted in November was legally insufficient, the correct course was an appeal to the Supreme Court under Section 53-T. That provision exists to allow an independent court to examine whether the NCLAT’s reasoning, factual assessment, and chosen remedy were correct and proportionate. An appeal preserves judicial hierarchy by ensuring that any change in outcome comes from a higher forum, not from the same Tribunal revisiting its own final order. By bypassing this route, the Tribunal effectively reviewed its own decision, weakening appellate discipline and turning “clarification” into a substitute for appeal.

Against this statutory appellate design, the clarification cannot be understood as a mere clarification. It tightens Meta’s obligations and fundamentally restructures the earlier granted reliefs which directly affects substantive rights and liabilities. Whatever one chooses to call it, “harmonisation or clarification”, its practical effect seems to be aligned with the power of substantive review rather than rectification. This has serious consequences, Since if a final relief can now be fundamentally altered mere weeks later through a miscellaneous application, the supposed finality ceases. Such practices further risk normalising post-judgment modification through questionable procedural mechanisms and undermining appellate discipline.  Leaving businesses, regulators, and users uncertain about when, or whether, litigation truly ends.

CONCLUSION: A PYRRHIC VICTORY

NCLAT’s December Clarification is a result few would dispute. To its credit, the clarification improves user choice, gives practical effect to findings of unfair conditions, and attempts to harmonise the enforcement of competition and privacy standards. However, the process adopted makes for a rather unsettling read. By using a “clarification” order to effectively reverse the final remedy, the tribunal has muddied the distinction between rectification and review. If final reliefs can be turned on their heads mere weeks later due to a miscellaneous application, finality and predictability are lost, and the appellate hierarchy is bypassed.

Good policies don’t excuse bad process. Legitimacy of any law (or system) depends as much on procedure as it does on outcome. Therefore, post-judgment modification must ideally remain confined to patent errors, clerical mistakes or ambiguities in implementation, while substantive modification of granted reliefs must follow proper procedure and must preferably follow the appellate route under Section 53-T. The notion of supremacy of substantive outcomes over procedural soundness, as evidenced by the NCLAT’s clarification,  ultimately leave us with grave concerns regarding our system's commitment to procedural stability and finality.