Day 3 Arguments

February 15th 2021

In January 2021, WhatsApp rolled out a new privacy policy and had given users time till February 28th 2021 to accept and update it. Some of the features of the new privacy policy triggered debates and seemed controversial. For instance, the new policy does not provide the users with the option to opt out of their data being shared with Facebook Inc, WhatsApp’s parent company. Due to public push back, WhatsApp has extended the deadline to update to 1May 15th 2021.

In February 2021, an application was filed in Karmanya Singh Sareen v Union of India challenging the new privacy policy. The application claimed that WhatsApp was offering lower privacy protections in India as compared to Europe. The three-judge bench led by CJI Bodbe heard the application on February 15th.

Senior Advocate Shyam Divan, appearing for the petitioner, argued that the new WhatsApp Privacy Policy introduced different standards for Indians as compared to the Europeans. The Privacy Policy applicable in India offers lower care and protection to users’ privacy and rights. He urged that until the Personal Data Protection Bill is enacted, WhatsApp should not be allowed to share the users’ data with any third party including Facebook, WhatsApp’s parent company. Mr. Divan asked the Court to admit his application and issue a notice. He pointed out that 1May 15th 2021 is the last date for the users to update and accept the Privacy Policy and requested the Court to hear this matter before that date.

Senior Advocate Kabil Sibal representing WhatsApp pointed out that the Privacy Policy is applicable in every jurisdiction except that of Europe as Europe has a special law regarding data protection. He also noted that the petitioner was challenging the Privacy Policy through an application and not through a substantive petition. Senior Advocate Arvind Datar, appearing for Facebook, added that the GDPR  in Europe is applicable for 27 European countries. He also pointed out that the Delhi High Court is hearing a similar challenge.

CJI Bobde issued a notice and posted the case four weeks later. He said the bench would decide at a later point about the already existing challenge before the Delhi High Court.