WhatsApp's Privacy Policy: SC Issues Notice To Facebook, Centre

Plea highlights disparity in WhatsApp's new privacy policy, applicable to Indian users as compared to European users.

The Supreme Court issued notice on a plea that sought directions to messaging platform WhatsApp that it shall not apply lower standards of its new privacy policy for Indian users as against users in Europe.

The top court has directed WhatsApp, Facebook (which owns WhatsApp) and the Centre to file their replies within four weeks.

"There are grave apprehensions about the loss of privacy," Chief Justice of India SA Bobde told Facebook and WhatsApp. "Please understand, you maybe $2-3 trillion company, but people value privacy more than your money. And it is our duty, to protect the people's privacy. That's the law we have laid down," CJI Bobde said referring to its nine-judge bench decision granting privacy as a fundamental right.

The bench was "impressed" with the arguments senior advocate Shyam Divan, representing the petitioner, made on the concerns surrounding the new policy, coupled with the fact that there is no data protection law in India. "WhatsApp should not apply lower privacy standards for Indian users as compared to European users," Divan had submitted.

"You (WhatsApp) are about to frame a policy and give effect in which you are going to share Indian data," CJI Bobde observed.

On January 4, WhatsApp alerted users about a new privacy policy asking users to accept the same by February 8, 2021. The deadline issued that failure to accept the new terms by the set date would lead to account deletion. However, on January 16, this deadline was extended to May 2021 after the Facebook-owned messaging platform faced severe backlash from users with calls to switch to other platforms like Signal and Telegram over WhatsApp's data privacy concerns.

Also Read: WhatsApp Delays New Privacy Policy To May 2021 After Backlash

Privacy policy applies to all but European users: WhatsApp to SC

"The government says that we are treating them (Indians) differently. But, this policy is applicable to all European users, senior advocate Kapil Sibal argued for WhatsApp. "Europe has a special law," Sibal added referring to the General Data Protection Regulation (GDPR)—considered to be one of the toughest privacy and security laws in the world. "As soon as India has a special law, we will follow," Sibal added.

Senior Advocate Arvind Datar, representing Facebook, said the issue of data-sharing by private companies had been considered by the top court during the nine-bench hearing in the privacy case. In the 2018 verdict, the court had laid down that personal information may not be shared, Datar argued. "The new privacy policy is a separate cause of action. The Delhi High Court (which is dealing with similar matters) has repeatedly said there is a disparity in the users. But Europe has the GDPR. When I (Facebook) am complying with the Central laws, Article 32 (challenge to fundamental rights) does not apply," Datar said.

Also Read: Agree Or Exit: WhatsApp's New Mandatory Privacy Policy Explained

Too much disinformation: WhatsApp, Facebook to SC

There is a lot of disinformation surrounding the new privacy policy, WhatsApp told the Supreme Court.

"People think that if somebody messages somebody else, then the fact that A messages B and B messages C, the whole circuit is disclosed to Facebook," CJI Bobde said. To this, Datar, Rohatgi and Sibal all three vehemently disagreed and said there is "too much disinformation."

"Give this statement in a reply on oath," CJI Bobde said. "We are telling you what we read and heard," he added. In a light moment, Sibal replied: "Nowadays what you read and hear is not the reality."

"WhatsApp shares the circuit of messages which go from user to user. Is that one of the apprehensions, Divan? CJI Bobde asked. "We are not on end-to-end encryption. There are huge elements of meta-data which is shared for-profit purpose," Divan replied.

Representing the Centre, Solicitor General Tushar Mehta submitted that the government would file a reply stating its stand in this issue. "Whether there is a law or not, right to privacy is a fundamental right and we must protect it. Can't extinguish or compromise this right," Mehta said.

Several cases concerning this issue have been filed in various high courts and the Supreme Court. In previous cases, the top court had directed the petitioners to approach the high court for relief.

"Will have to see if this matter is pending before us in a Constitution Bench. Why should the High court look into it," CJI Bobde observed. To which, Mehta said that it would be better if the apex court looked into this issue.

Also read: WhatsApp's Privacy Policy: Data Protection Law Needed, Say Experts

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