WhatsApp Privacy Policy Day #2: Bench Decides to Hear Case in April
Whatsapp-Facebook PrivacyJudges: K.M. Joseph J, Ajay Rastogi J, Hrishikesh Roy J, Aniruddha Bose J, C.T. Ravikumar J
Today, the 5-Judge Constitution Bench led by Justice K.M. Joseph continued to hear the petitions challenging WhatsApp’s 2016 and 2021 Privacy Policy. The policies permit WhatsApp to share data with Facebook and all its group companies for the purposes of commercial advertising and marketing.
Background
In 2014, when WhatsApp was bought by Facebook, it stated that its privacy policy would not change. Yet, in August 2016, they changed their privacy policy. The new policy said that account information of users including users’ phone numbers and contact details will be shared with Facebook and other companies. An announcement was made that the new policy would come into effect after September 25, 2016.
Worried by this announcement, Karmanya Singh and Shreya Sethi – two students filed a petition challenging the privacy policy in the Delhi High Court.
A two-judge Bench of the Delhi High Court rejected the petition on September 23rd 2016. The Court, however, directed WhatsApp to delete the data, until September 25th 2016, of users who choose to delete the application.
Thereafter, the petitioners filed a Special Leave Petition at the Supreme Court against the Delhi High Court judgment. The SLP was initially heard by a Division Bench and referred to a Constitution Bench on April 5th, 2017.
Arguments by the Union Government
The Bench began the hearing by asking the Union Government to provide a reasonable time frame within which the Digital Data Protection Bill, 2022 can come into effect. Attorney General R. Venkataramani and Solicitor General Tushar Mehta, representing the Union, said the Bill would be introduced at the Parliament during the second half of the ongoing parliamentary session which begins on March 3rd, 2023.
The Union also stated that the Bill that was proposed had considered the Privacy Policies of the US as well as Europe and had taken appropriate measures to ensure the Indian users were not discriminated against.
Arguments by Mr. Kapil Sibal Representing WhatsApp
Senior Advocate Kapil Sibal, representing WhatsApp, stated that the Bill will come into effect around July 2023 and urged the Bench to consider the matter after that. He argued that if the Judgment is delivered before the Bill comes into effect, it may serve as an obstacle for the Bill to have full effect.
Further, Mr. Sibal argued that the current policy does not misuse user information. WhatsApp only shares content with third parties after obtaining consent and only does so for the benefit of the user.
Arguments by Mr. Shyam Divan Representing the Petitioners
Mr. Divan presented three reasons to hear the case immediately. First, there is no definite timeline for Parliament to enact the Bill. Second, WhatsApp was sharing user information to Facebook and other 3rd parties for commercial purposes without user consent. This breaches the fundamental Right to Privacy. Third, WhatsApp had different privacy standards for users in Europe and India. This breaches the right to privacy guaranteed under Transnational Human Rights Law.
He also submitted that the Petitioners were users of WhatsApp since before the 2016 Policy emerged, so they must be governed by the Privacy Policy that existed before 2016.
Order Passed by the Bench
After lunch, the Bench informed the parties that they would hear the matter if the parties could finish their arguments by February 14th, 2023. The Petitioners agreed but the Respondents said this was not possible as they had other cases to attend.
Mr. Sibal added that users were not barred from using WhatsApp if they did not accept the new Privacy Policy. Further, this information had been communicated to the Union and published in newspapers.
Therefore, the Bench passed an order directing the Respondents to publish this information once again in 5 national newspapers on Feb 15th and March 1st, 2023, and continue to allow users to opt-out of the Privacy Policy. This direction will remain in force until the next hearing on April 11th, 2023.