New Delhi: A Constitution bench of the Supreme Court Wednesday directed WhatsApp to publicise its undertaking given to the government in May 2021 that it will not deprive users of WhatsApp or limit functionality for its users for not agreeing to its new privacy policy, till the new data protection regime is brought in.
In 2016, WhatsApp had changed its privacy policy and made it mandatory for users to agree to the new terms of privacy in order to continue using the app. In January 2021, WhatsApp rolled out a new privacy policy, giving users time till 28 February, 2021, to accept it.
Among other things, this policy did not give its users an option to opt out of their data being shared with Facebook. However, after widespread pushback, it gave an undertaking to Ministry of Electronics and Information Technology (MeitY) in May 2021, saying, “WhatsApp will not limit the functionality of how WhatsApp works in the coming weeks as previously planned…We hope this approach reinforces the choice that people have in how they use WhatsApp. We will maintain this approach till the forthcoming Data Protection Bill comes into existence.”
The bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar directed the messaging app to spread the word in five national newspapers, “on two occasions”, to publicise its undertaking given to the government in 2021.
The court is hearing petitions filed by two WhatsApp users, Karmanya Singh Sareen and Shreya Sethi, challenging WhatsApp’s 2016 and 2021 privacy policies.
During the hearing, the court was informed of this letter written by WhatsApp to MeitY. Taking note of this letter, the court said, “The common man may not understand the implications of this. If we indicate today in the order…this will be given full publicity…what is the effect of this…That we will compel you in a manner that you will be forced to leave. You can continue with WhatsApp. The agreement you have already entered into, will continue.”
“All users will be informed that you do not have to actually give consent to continue (on WhatsApp) which will involve giving up your rights,” it added.
Attorney General as well as Solicitor General Tushar Mehta also told the court that the Digital Personal Data Protection Bill, 2022, is on the anvil of being placed before the Parliament — in the second half of the Budget Session 2023. They contended that the bill would deal with the aspects which are the subject matter of the petitions before this court, and therefore, the case may not be taken up till then.
This request was also echoed by the lawyer for WhatsApp, Kapil Sibal, but was opposed by senior advocate Shyam Divan, appearing for the petitioners.
Divan Wednesday submitted that the first broad element in the case is that of data protection. He asserted that “data in today’s world has enormous commercial value”.
He also demanded interim orders to be passed. He contended that those people who may have agreed to WhatsApp’s privacy policies in 2016 or 2021 should have the right to opt out of them.
The court, however, opined, “Noticing the bill is being considered and also the arguments may not conclude, we are of the view that the matter need not be considered immediately.”
It refused to grant this relief, noting that “the matter may require consideration of the issues which arise”.
The case will next be heard on 11 April.
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High court’s partial relief
In 2014, WhatsApp was bought by Facebook for $19 billion, but it maintained that its privacy policy would not be changed. However, in August 2016, WhatsApp announced a change in its privacy policy, permitting WhatsApp to share data with Facebook. The users were asked to agree to the terms of the privacy policy by 25 September 2016, to continue using WhatsApp.
Sareen and Sethi challenged this policy change in Delhi High Court in August 2016, contending that the proposed change in the privacy policy would result in altering “the most valuable, basic and essential feature” of WhatsApp — complete protection to privacy and data of its users.
Sareen had also contended that the manner in which the user’s consent to the policy was being obtained was “highly deceptive”, saying that a majority of the Indian community of WhatsApp users are “not equipped to even read, much less comprehend the consequences of the terms and conditions on the basis of which the consent of the users is sought to be obtained”.
The Delhi HC disposed of the writ petition, granting partial relief. It ordered that if users opt to delete WhatsApp before 25 September 2016, their details should be deleted completely from WhatsApp servers. It also said that for users who choose to keep WhatsApp, their information up to 25 September 2016 shall not be shared with Facebook.
Singh and Sethi challenged this judgment in the Supreme Court in December 2016.
(Edited by Zinnia Ray Chaudhuri)
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