The ongoing clash between privacy-lovers and social media behemoth Facebook and its subsidiary WhatsApp has thrown up more questions than answers after this week’s initial face-off in the Supreme Court. However, it is abundantly clear that both the government and the highest court of the land must step in to protect legitimate citizen rights by being pro-active and informed — something unsuspecting smartphone users are not good at as the digital explosion creates a new divide between the “knows” and the “know-nots”.
"Take it or leave it," Facebook’s lawyer KK Venugopal and his WhatsApp colleague Kapil Sibal seemed to say on Thursday. The message that came across was that those who are not comfortable with Facebook and WhatsApp can simply stay away. After all, they offer free services and in any case, establishments can say no to customers who do not agree to their terms and conditions.
But the case is not as simple for two reasons. One is related to customers' vulnerability and the other being of technological complexity. Both require the State to play a custodian's role (just as in the case of child abuse and domestic violence, in which the simple rules of family privacy do not apply).
Every time a user presses the “I agree” button in a free online service, be it email or a social media account, he or she usually okays a whole lot of legalese-loaded terms. On the one hand, these cover legitimate ways by the service provider to indemnify the company from unfair lawsuits. On the other hand, if the terms are too dense, amended without sufficient notice and grants a virtual right in perpetuity to manipulate users, it is bad for natural justice. In that sense, social media ranks in the same category as alcohol and mutual fund investments. They are subject to risks that must be amplified like warnings on a bottle or advertisements that say: “Please read the offer document carefully before investing.”
That doesn’t seem to be happening in India because ideas of privacy are still in their infancy in the country while a breakneck expansion of smartphones and digital services make “consent” a dubious one. In this week’s Supreme Court assertion, Facebook seems to have reserved the right to be a "supersnooper" on WhatsApp users in order to meet its advertising/revenue strategy, but does the ordinary user know what she is in for? How about a pop-up that says “Facebook and WhatsApp are now sister concerns in a technological collaboration. Users are advised that their data may be used interchangeably between the two apps” more simply and explicitly.
Transparency and honesty are always expected in business, but we may now add “clarity and prominence” among desirable criteria that digital consumers should be logically expecting.
Let us consider Facebook and WhatsApp to be the equivalent of merchant bankers who work for fees and stock market analysts who make "buy" and “sell” calls in the same Wall Street brokerage. There have been controversies over how a Chinese Wall was not operating between such entities. What we need next is a kind of arrangement where social media users are insulated from an undesirable “interconnectedness”. There is plenty of financial regulation that offers precedents for such action. The government must keep these things in mind as it plans a regulatory regime for messenger platforms.
It is also pertinent to remember that India does not have a fully fledged privacy law in place but ideas of decency and right to life have been suitably interpreted by the judiciary. An additional dash of custodial care — or asking the government to quickly spell out a regulatory regime, may be desirable. It may want to look at Germany, where a court has just found it right to call for pro-active permissions in porting data between WhatsApp and Facebook. The implication is that users cannot be made unsuspecting victims of fine print in the terms of service.
The good news is that the Supreme Court seems to be aware of the “emerging” nature of challenges as it keeps an open mind and an alert eye.
The writer is a senior journalist. He tweets as @madversity
Published Date: Apr 28, 2017 05:32 pm | Updated Date: Apr 28, 2017 05:32 pm