SC to decide if WhatsApp privacy policy affects users' rights; "Why do you share the data?" asks bench

The Supreme Court today said it was "concerned" whether the citizens' rights were being affected by WhatsApp's 2016 privacy policy and asked the Centre what steps could it take for the "protection" of users till a regulation is framed.

A five-judge constitution bench, which started hearing in detail the WhatsApp privacy policy matter, also questioned the popular instant messaging application on the sharing of user data with social networking platform Facebook when it was not being done before 2016.

The apex court also said it would consider whether the court was "helpless" in framing guidelines in the absence of a regulatory regime in place to deal with the issue. "We are concerned with whether an individual's rights are affected under Article 19(1)(g) of the Constitution due to this (privacy policy). They (WhatsApp) cannot say that users have agreed to it," the bench headed by Justice Dipak Misra said.

During the day-long hearing, WhatsApp, which was acquired by Facebook in 2014, claimed before the apex court that it was being "targeted" because it was the most successful among various similar platforms operating in India.

When the court was told that WhatsApp only shares phone numbers, device ID, registration details and the last seen status, the bench shot back, "Why do you share? You were not sharing it in 2012, then why have you done it in 2016?" "You say the name is not shared but the attributes of identity is shared. What is the need to share the attributes of identity? Now they (users) fear what you will share," the bench said.

Advocate Madhvi Divan, appearing for two students Karmanya Singh Sareen and Shreya Sethi who have challenged the policy, told the bench that the Centre has acknowledged in its affidavit that the regulation in place has been outdated by the technology.

"You (Centre) have said you are making a regulation on this. Till then, as a citizenry, what is the protection," the bench, also comprising Justices A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar, asked the government. "Suppose somebody has written an inland letter to X. Can Y intervene and read it? They feel your privacy clause affects their right to freedom of speech. They say fear corrodes their right," the bench observed.

At the outset, the bench was informed that senior counsel Harish Salve, who was to argue for the petitioners, was in the Hague to represent India in the Kulbushan Jadhav matter before the International Court of Justice (ICJ).

The bench then asked senior advocate K V Vishwanathan, representing the Internet Freedom Foundation (IFF), an intervenor in the case, to start the arguments.

He said that unlike several other countries, India does not have any data protection legislation and the government has an obligation to protect the rights of its citizens.

"Facebook and WhatsApp are the violators according to us and how to deal with them is up to the Union of India as the government has an obligation to protect the rights of its citizens," he said, adding that due to the 2016 privacy policy, "I am under fear and my communication is hampered". "Life of fear, anxiety, tension and torture is not a free life. This court is not powerless to lay out a guideline for this," he told the bench, which would continue hearing the matter tomorrow.

The senior counsel also argued that there were around 160 million users of WhatsApp in India and the consent taken by WhatsApp regarding its 2016 privacy policy was "deceptive".

Senior advocate K K Venugopal, appearing for Facebook, told the bench that "message conveyed by A to B on WhatsApp is never seen by anybody. At no time, it will be available to perusal by anybody else as it is end-to-end encrypted."

During the arguments, Divan told the court that Facebook and WhatsApp are foreign corporations having business all over the world and in some other countries, they have said they would not share the user data.

"It is ironical that in India that too before the Supreme Court, which is the highest court of the land, they are saying so," she said.

When the bench asked the Centre to clarify its stand over the issue, senior advocate Vibha Datta Makhija, appearing for the government, said all the rights available to the citizens should be balanced.


Published Date: May 16, 2017 08:51 am | Updated Date: May 16, 2017 08:51 am