Supreme Court Orders WhatsApp to Widely Publicize that Users aren't Bound to Accept its 2021 Privacy Policy

Supreme Court Orders WhatsApp to Widely Publicize that Users aren't Bound to Accept its 2021 Privacy Policy

A Constitution bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar were hearing the petitions which were challenging the 2016 privacy policy of WhatsApp in the case of Karmanya Singh Sareen and another versus Union of India and others (SLP)(2017). In 2017 the case was transferred to the Constitution bench.

Earlier, the bench was informed about the Data Protection Bill which was introduced in the Parliament in the second half of the Budget Session, 2023. Considering the same, the Centre and Meta-WhatsApp, both the respondents in the matter had pleaded before the Court to defer the hearing.

The Apex Court had directed the Meta-WhatsApp to widely publicize its stand that WhatsApp users in India do not have to accept its 2021 privacy policy in order to use it, and WhatsApp's functionality would remain unaffected till the Data Protection Bill comes into existence.

On 22nd May, 2021 WhatsApp in a letter to the MeitY, Government of India had submitted the following undertaking, "WhatsApp will not limit the functionality of how WhatsApp works in the coming weeks as previously planned. We will continue to display our update from time to time to people who have not yet accepted. In addition, we will display the update whenever a user chooses relevant option features…. 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 Constitution bench while passing the order remarked that the publicity of the undertaking would benefit those who have not agreed to the terms of WhatsApp's Privacy Policy of 2021. The Bench recorded the undertaking given in the letter dated 22nd May, 2021 and recorded submission made by Mr. Kapil Sibal, Senior Counsel representing WhatsApp that it will abide by the terms of the letter which the Court extracted, till next date of hearing.

The order was passed as an interim direction in a batch of petitions challenging the 2016 privacy policy of WhatsApp.

On 1st February, 2023, the Attorney General for India, Mr. R. Venkataramani, also raised the same contentions as the Solicitor General of India, Mr. Tushar Mehta, had expressed on the previous occasion. He was afraid that the Court's discussions on the draft Bill, might orient the debate in the Parliament. Apprising the Bench that the Bill subject to getting approval from the Cabinet is intended to be presented in the second half of the Budget Session, i.e., between 13th March, 2023 and 6th April, 2023, he sought the Court's lenience to postpone the hearing till then.

Further, Mr. Sibal submitted that there exist two regimes. One of the policies is followed in the European Union while the second is followed in the rest of the world, including India. He argued that there are 600 million users of the Application in India, and none of them have expressed or complained that their data has been disclosed by WhatsApp to any third party. Mr. Sibal argued that the Information Technology Act and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 regulates the concerned field.

Moreover, he highlighted that WhatsApp is protected by end-to-end encryption feature and even WhatsApp does not retain any information with respect to the user's messages. He submitted that the concept of sharing data with Facebook comes into existence when a person is on both the Applications and is carrying on activities on Facebook. He clarified that the only user information that is available to WhatsApp other than the user's name is the phone number.

Justice Joseph after analysing the rules believed that the protection provided was primarily with respect to sensitive personal data. According to him, it appeared that personal data could be transferred without consent. He remarked that WhatsApp holds ability to manipulate political views, the Judge enunciated his concern that since political opinion was not considered as sensitive personal data, it might not have the same safeguards as the sensitive personal data and if passed on to a third entity it can be used for commercial purposes as well as political purposes.

Considering all these aspects, the Bench decided not to go ahead with the final hearing of the matter. However, at the request of Senior Advocate, Mr. Divan, appearing for the petitioners and Sr. Adv. Mr. K.V. Vishwanathan, appearing on behalf of the Internet Freedom Foundation (intervenor), agreed to consider the application for interim relief.

Due to the aforesaid reasons, the Bench ordered WhatsApp to give wide publicity to the undertaking so that the users are aware of their stand and further listed the matter for directions on11th April, 2023.