Day 2 Arguments

September 6th 2017

Today, a 5-Judge Bench, consisting of Justices Dipak Misra, A. K Sikri, Amitava Roy, A. M. Khanvilkar and M. M. Shantagoudar heard arguments about the data protection framework of  WhatsApp. In the previous hearing, questions were raised about the maintainability of the writ and the applicability of fundamental rights to non-state actors.

 

Ms. Madhavi Divan, appearing for the Petitioners, began by noting that the right to privacy applied even against non state actors. Mr. Tushar Mehta, Additional Solicitor General, interjected to note that the Committee of Experts to deliberate on a data protection framework for India, headed by Justice B. N. Srikrishna, former Judge of the Supreme Court, had been constituted. A law could be enacted after this committee submitted its report.

 

Mr. K. V. Vishwanathan, arguing for Internet Freedom Foundation welcomed the recognition of informational privacy by the 9 judge bench. He quoted paragraph 174 of Justice Chandrachud’s opinion, which discusses metadata and protection against non-State actors. Referring to the Visakha judgement, he urged the Court to lay down guidelines until a law is enacted.

 

Justice A. K. Sikri pointed out that the Visakha judgement was due to legislative inaction, but given that B. N. Srikrishna Committee had been constituted, this matter would be dealt by experts rather than the Court.

 

At this point, Chief Justice Dipak Misra sought to know what data was being shared between Whatsapp and Facebook. Mr. Kapil Sibal, appearing for WhatsApp, insisted that the Petitioners clarify what data was being shared to substantiate their claims. Ms. Divan stated that apart from content being shared, metadata was also shared between Whatsapp and Facebook. Informed consent was a facet of Article 19(1)(a), and WhatsApp’s “‘take it or leave it’ contract of adhesion violated it. She contended that WhatsApp brought on a large consumer base in the initial stage owing to a more stringent privacy policy. The current privacy policy sought to impose hidden considerations after building a loyal consumer base. This was an unconscionable bargain, especially in a country where a significant number of consumers were semi literate individuals who might not understand the implications of such a policy. Mr. Sibal contended that the policy clearly mentioned that it could be changed in case of a merger. When he reiterated that far more data is being shared on Google, the bench expressed its disapproval, noting that merely because other entities did it, did not make it a correct practice.

 

Mr. Vishwanathan and Ms. Divan insisted that the Court pass an interim injunction restraining the respondents from sharing data with third parties.

 

The Bench has asked WhatsApp and Facebook to file affidavits within four weeks explaining what data is shared by them and with whom. Thereafter, the Court will hear arguments on whether interim directions are required to be passed.

 

The matter has not been listed for the next hearing as of date.

 

(This post relies on contributions from Ms. Nidhi Khanna)