Centre Versus WhatsApp: Company’s New Privacy Policy Violates Indian IT law, Central Government Tells Court

Earlier this year the announcement by WhatsApp to update its privacy policy saw a deluge of users switching to rival applications such as Signal and Telegram in India.

Now Facebook-owned WhatsApp has to convince not just the people but also the courts that its policy does not violate the fundamental right to privacy.

As several PILs were filed against the new privacy policy, the Government of India on 17 May told a bench of Chief Justice D N Patel and Justice Jyoti Singh in the Delhi High Court that it views WhatsApp’s latest policy as a violation of Indian Information Technology (IT) law and rules.

According to WhatsApp, which has over 300 million users in India, its newly introduced privacy policy has already come into effect from 15 May this year.

The messaging platform said that it would not begin to delete the accounts of those users who are yet to accept the terms and condition of its privacy policy.

Rather, the company will try to encourage those people who haven’t yet accepted the terms to accept them.

The bench issued notice to Centre, WhatsApp and its parent company, seeking their stand on a plea by a lawyer who claimed that the latest policy violates users’ rights to privacy under the Indian Constitution.

Notably, the Centre told the bench that it has written to Facebook CEO Mark Zuckerberg on the issue and is waiting for his response.

Earlier, when this privacy policy issue was first listed before a single judge, the government told the court that WhatsApp was treating the Indian users differently as European users have been spared from the new policy.

As per the Centre, it was a matter of concern that the users in India were being "unilaterally" subjected to the change in the privacy policy by WhatsApp and that the government was looking into it.

WhatsApp told the Delhi High Court: “If the relief sought by petitioners were to be granted based on the alleged deficiencies in the 2021 update, it would cripple the entire industry of internet-based applications and websites.”

It argued that the company is not forcing all its users to accept the privacy update and they can choose not to do so and stop using the messaging app.

The company also said that it is not obliged to provide an alternative option and the law permits companies not to provide their service to users who do not accept its terms and conditions.

The court listed the matter for further hearing on 3 June.

Supreme Court

While the PIL is currently being heard by the division bench of the Delhi High Court, the Supreme Court is also hearing a separate challenge to the privacy policy.

In February, the Supreme Court issued notice against the social media giants Facebook and WhatsApp on a plea challenging the privacy policy.

A Bench headed by CJI SA Bobde noted that the privacy of people must be protected given the allegation that users’ data was being shared with other companies.

The court was hearing a plea by Karmanya Singh Sareen and others seeking a stay on the new privacy policy of WhatsApp.

While senior advocate Shyam Divan alleged that huge metadata was being shared for profit, on behalf of WhatsApp, senior advocate Kapil Sibal said that Europe has a special law—known as General Data Protection Regulations—which is not present in India.

Sibal continued his argument stating that WhatsApp will follow the law if Parliament makes it.

Chief Justice of India Sharad A Bobde said: "People have great apprehension over the loss of privacy. People think that if somebody messages to someone then...the whole thing is disclosed to Facebook."

But along with Sibal senior advocate, Arvind Datar claimed that such fears were not based in reality and termed it “misinformation”.