SCO Daily: Is WhatsApp violating the Right to Privacy?

When Facebook bought WhatsApp in 2014, WhatsApp users were assured that its privacy policy would not change. Yet, in August 2016, WhatsApp introduced a new policy allowing it to share user data with Facebook and other companies.  

On August 26th, 2016, two concerned law students, Karmanya Singh Sareen, and Shreya Sethi challenged the validity of WhatsApp’s new privacy policy at the Delhi High Court. They argued that the policy violated the Right to Privacy guaranteed by the Constitution of India. The Delhi HC rejected the petition but directed WhatsApp to delete the data of users who deleted the app before the privacy policy came into effect. In January 2021, Whatsapp rolled out another privacy policy triggering more debates on the right to Privacy. Citizens pointed out that the latest policy did not give Indian users the same data protection rights as European users. 

The petitioners appealed the Delhi HC decision at the Supreme Court on April 5th, 2017. Starting on January 31st, this year, a 5-Judge Constitution Bench led by Justice K.M. Joseph heard the matter over two days.  

The Union Government requested the Court to postpone the hearing. Solicitor General Tushar Mehta claimed that the Digital Data Protection Bill of 2022 would be introduced before the Parliament this March. Once this Bill comes into force, it would solve many of the issues raised by the petitioners. Senior Advocate Kapil Sibal, representing WhatsApp, agreed with the Solicitor General. He added that users who did not accept WhatsApp’s new Privacy Policy were not forced to leave the app. However, Senior Advocate Shyam Divan, representing the petitioners, pushed for an immediate hearing. He reasoned that legislative action is uncertain and the Court must direct its immediate attention to the issue. 

Finally, the Bench agreed to wait till after the Digital Data Protection Bill is placed before the Parliament in order to avoid potential contradictions. In the meantime, the Court directed WhatsApp to publish a disclaimer in five popular newspapers that its users can continue using the app even if they do not accept the new privacy policy. The case is expected to be heard next on April 11th, 2023.

Will the Digital Data Protection Bill of 2022 be passed this year? And will it address the concerns over WhatsApp’s privacy policy? Stay tuned to the Supreme Court Observer to find out.