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WhatsApp’s privacy fight in Indian courts

The announcement by WhatsApp to update its privacy policy earlier this year saw a deluge of people switching to rival applications. In India, WhatsApp has to convince not just its user base but the courts of the country as well that its policy doesn’t violate the fundamental right to privacy.

In January this year, WhatsApp updated its privacy policy to say that it now reserves the right to share some user data with the broader Facebook network, which includes Instagram. WhatsApp had asked users to agree to the new policy by Feb. 8 but later pushed that deadline to May 15. The text for the policy is different for Europe compared with the rest of the world.

Presently, there are several petitions pending before the Supreme Court of India and Delhi High Court against WhatsApp’s privacy policies.

Petitions Complain Of Differential Treatment
In the Supreme Court, a three-judge bench of CJI SA Bobde, Justice AS Bopanna and Justice V Ramasubramanian is hearing a challenge to WhatsApp’s updated privacy policy. The petition has been filed by Internet Freedom Foundation and lawyer Karmanya Singh Sareen.

Arguing for Sareen this week, Senior Advocate Shyam Divan pointed to WhatsApp’s different privacy standards for users in India versus those in Europe. The standards must not be lowered for Indian users, he told the court as per legal website Bar and Bench. There is a great amount of metadata that’s shared and in the absence of a data protection law, there must be a direction to the central government to not allow the implementation of the new privacy policy, he said. The apex court has now issued notice on this application.

Separately, another Constitution bench of the apex court is also hearing a challenge to the 2016 privacy policy. Through this, the messaging app had announced that it will begin sharing some data with Facebook for the first time.

In the Delhi High Court, there are two different benches hearing challenges around the privacy policy.

On Feb. 3, a division bench of the high court issued a notice on a PIL challenging WhatsApp’s January 2021 policy. The PIL stated the policy violates Article 21 of the Indian Constitution which recognises the right to privacy as a fundamental right. This version, compared to the July 2020 one, did not even allow users to opt-out of sharing their data with Facebook. When the popular messaging application last updated its privacy policy in July 2020, it gave users a month to opt-out from sharing information with its parent. The court has sought the response from WhatsApp and the central government on this PIL.

The second case before the Delhi High Court is a writ petition filed by a lawyer Chaitnaya Rohilla. This one has accused WhatsApp of making a mockery of the fundamental right to privacy while discharging a public function. The petitioner also said the policy had the potential to jeopardize national security as it allows user data to be stored outside India. The petition has come up before a single-judge bench of the high court but no notice has been issued on this one.

WhatsApp Defends Its Privacy Standards
Facebook and Whatsapp have consistently taken the stance that the January policy does not compromise any personal data of the users.

The company also said its policy in Europe is different than other countries because of different laws on privacy. But the policy for Indian users is similar to the rest of the world.

Arguing for the company, Senior Advocate Kapil Sibal told the apex court this week there are no differential standards. “My learned friend said WhatsApp is differentiating between India and Europe. The fact is that this policy is applicable to the rest of the world except Europe. Same policy is in the U.S., Australia etc.,” Sibal was quoted as saying by LiveLaw. “In Europe it’s different because they have a special law.”

“If India has a similar law then we shall follow it,” WhatsApp told the apex court. The company also pointed out the number of petitions being filed on the issue and told the top court that it is willing to submit its assurances through an affidavit.

The bench pointed to apprehensions surrounding the privacy policy to the company’s lawyers. “You must understand people have grave concerns about their privacy. You may be $2 trillion, $3 trillion company,” Chief Justice of India SA Bobde was quoted as saying by LiveLaw. “But the privacy of people is more important than your money.”

Government Says The Issue Is Of Public Importance
Both before the apex court and high court, the central government has maintained that it believes this issue to be of public importance. Separately, the government has also has asked for the company’s response on the new privacy policy.

In the high court, Additional Solicitor General Chetan Sharma pointed out that the company is following an “all or nothing’’ approach for its users in India and the government is looking into the issue.

In the Supreme Court, Solicitor General Tushar Mehta appeared for the central government and told the court that the right to privacy is a fundamental right and it cannot be infringed upon irrespective of whether there is a specific law for it or not.

The Supreme Court will now take up the case after four weeks. The PIL before the division bench of the Delhi High Court will come up for hearing on March 19. Bloomberg

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