SC to hear pleas challenging WhatsApp privacy policy in August

The Supreme Court on Wednesday listed the petitions challenging the privacy policy of WhatsApp for hearing in August, after the Central government submitted that it would submit the Data Protection Bill, 2022 before the Monsoon session of Parliament, set to begin in July.

The order was passed by the Constitution Bench of Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar on petitions alleging that WhatsApp’s privacy policy, which was introduced in 2016, violated the Right to Privacy under Article 21 of the Constitution of India.

Appearing for the Central government, Attorney General for India R. Venkataramani apprised the Court that the Bill, which would address all concerns, was ready and would be introduced in the Monsoon session, scheduled to begin on July 23.

The Constitution Bench, after taking note of the submission by the AG that consultation was a long process, ruled that considering the circumstances, the matter would be placed before the CJI for a Bench to be constituted preferably in the first week of August.

Senior Advocate Shyam Divan, representing the petitioners, noted that the Aopex Court had earlier adjourned hearing in the matter on similar submissions.

Divan noted that earlier, the petition was listed in September, then it was adjourned to January, after the Central government assured to introduce the Bill in the Winter session.

Earlier on February 1, the Apex Court had directed WhatsApp to give wide publicity of its undertaking in the media that users were not bound to accept its 2021 privacy policy and that the functionality of the messaging app would not be affected till the new data protection regime was in place.

To protect the interests of WhatsApp users in the interim, the Bench instructed the messaging app to publicise the stand it took in a May 2021 letter to the Central government that no users will be removed from the platform for not accepting the privacy policy.

The messaging service provider had written a letter to the Ministry of Electronics and Information Technology (MeitY), on May 22, 2021, stating that WhatsApp would not limit the functionality of how it would work in the coming weeks, as previously planned. The company would continue to display updates from time to time to people who have not yet accepted their privacy policy.

The company would further display the update, whenever a user chose relevant option features.

The approach would be maintained till the time the Data Protection Bill came into existence, added the letter.

The Court said that it has directed WhatsApp to cause publicity of this aspect for the benefit of customers of WhatsApp by giving an advertisement in five newspapers on two occasions.

It added that the advertisements shall be full page and should definitely incorporate the stand taken in the letter.

Although it was contested still, the order was passed after the petitioner argued that when the case was originally taken up in 2017, the very same ground was pointed out for an adjournment.

The petitioners said that way back in 2017, an assurance was extended to the Constitution Bench that the Act will be passed by Diwali as per news reports.

Talking about the merits of the case, Senior Advocate Shyam Divan said that the stand taken by WhatsApp with regard to customers in the European Union was in stark contrast with that for India, without any warrant.

Solicitor General Tushar Mehta had requested the Bench for not permitting anyone to deliberate on the contents of the Bill in the open court, until the same was introduced in the Parliament.

Advocate Kapil Sibal, who represented Meta-WhatsApp, asked the Bench for taking up the matter once the Bill was introduced.

Advocate Shyam Divan, who appeared on behalf of the petitioners, opposed the suggestion for deferment.

Advocate Divan said that the privacy policy of WhatsApp underwent a drastic change in 2016. Due to the policy, WhatsApp could share certain elements of data – personal and meta-data to Facebook Group of Companies.

Advocate Divan told the Court that in 2017 when the matter was referred to the Constitution Bench, the Solicitor General had assured the Bench about an enactment pertaining to the protection of data.

He also apprised the Bench that the last Bill, which was introduced in the Parliament, was ultimately withdrawn by the Centre.

He said that earlier also, the bill was introduced but withdrawn, so the introduction of a Bill itself should not defer the taking up of this case.

The Bench was informed that some of the issues raised in the petitions dI’d not deal with the Data Protection Bill at all.

Sibal vehemently argued that the Court should await the introduction of the Bill in order to effectively decide the matter.

Justice Roy questioned the petitioners if there was any harm on the matter been deferred for a reasonable period in view of the fact that the Centre proposed to introduce the Data Protection Bill within a period of two days.

In response, Divan pointed out that the matter was pending before the Apex Court since 2016. He also submitted that there were issues which do not seem to be addressed by the provisions of the forthcoming Bill.

Sibal pointed out that the issue has been addressed by the nine-Judge Bench in K. Puttaswamy vs Union of India.

SIbal also said that as far as non-state actors were concerned, it was better that the Bill was formulated by the Parliament before the Court dealt with it.

Justice Joseph enquired, if it was a live issue today, to which he got an affirmative reply.

Senior Advocate K.V. Vishwanathan, who appeared on behalf of Internet Freedom Foundation, informed the Bench that there was no regulation with respect to data protection, even though it has the positive obligation to regulate it.

Divan noted that earlier, the petition was listed in September, then it was adjourned to January because the Central government assured to introduce the Bill in the Winter session.

Nonetheless, the AG underscored that consultation was a long process.

With this, the hearing was postponed.

The question of law before the Bench in this case is whether WhatsApp’s privacy policy (introduced in January 2021) violates right to privacy under Article 21 of the Constitution of India.

In February, after hearing the parties at length, the Court agreed to defer hearing the challenge in light of the submission that the Bill was likely to be placed before Parliament during the Budget Session 2023.

“It is their (respondents) contention that the Bill will deal with the aspects that are subject matter of petitions before this court as it is prayed that the case may not be taken up,” the Bench had recorded while adjourning the case to April 10.

However, to protect the interests of WhatsApp users in the interim, the Bench asked the messaging app to publicise the stand it took in a May 2021 letter to the Central government that no users will be removed from the platform for not accepting the privacy policy.

“We further direct WhatsApp to cause publicity to this aspect for the benefit of customers of WhatsApp by giving an advertisement in five newspapers on two occasions. Ads shall be full page. The ad will necessarily incorporate the stand taken in the letter.” India Legal Live