We have produced a podcast on the ongoing Whatsapp – Privacy case which can be accessed here.
The transcript is as follows:
Good morning! This podcast is being recorded on 6th September 2017. This is Ashwini Tallur from Centre for Law and Policy Research, Bangalore.
In 2017, we set up the Supreme Court Observer, a website that tracks impactful Supreme Court cases. It is a non-partisan effort to make the work of the Supreme Court intelligible to anyone interested in Indian public affairs.
Today, I will give a brief introduction on the ongoing Whatsapp-Facebook Privacy case, and what we can expect in today’s proceedings.
Introduction
When Whatsapp was launched in 2010, it did not allow sharing of the Users’ data with any other party. In 2014, Whatsapp was bought by Facebook for $19 billion. It maintained that its privacy policy would remain unchanged.
However, in 2016, Whatsapp announced a change in its privacy policy.
The Petitioners, Karmanya Singh and Shreya Sethi, two Whatsapp Users, claim that the new policy seeks to collect all information relating to every WhatsApp account, such as phone numbers, names, messages, device information, as well as third-party information, which would be used to support operations, analyse user profiles and actions, and market their services. The new Privacy Policy claims worldwide Intellectual Property Rights to user-generated data including uploads, messages etc. which are sent, stored or received through WhatsApp.
The Petitioners further claim that the Policy is so pervasive that even if users delete WhatsApp, the past information could still be retained for an undefined period, unless the users consciously delete the entire account.
The Petitioners found this change violative of their privacy filed a Public Interest Litigation before the Delhi High Court in 2016. On 23rd September 2016, the Delhi High Court rejected the petition, but directed Whatsapp to delete the data collected till 25th September from its servers. However, the information exchanged on Whatsapp after 25th September was allowed to be shared under the new policy. It also directed the Union of India and regulatory authorities such as Telecom Regulatory Authority of India to consider bringing applications such as Whatsapp under a regulatory framework. The petitioners were not satisfied with the relief given by the Delhi HC, and have filed this Special Leave Petition in the Supreme Court.
Issues
The petition broadly seeks a solution to the issue of online privacy and asks for the state to intervene. India currently has no specific law dealing with user data privacy. The questions to be answered are:
- Does Whatsapp’s Privacy policy violate the Right to Privacy of its users?
- Is not providing an option to the user of not sharing data with Facebook contrary to law?
- Is the manner in which Whatsapp has obtained the consent of its users deceitful?
Counsels
The Petitioners are represented by Mr. Harish Salve.
4 counsels are appearing for the respondents.
Mr. Arvind Datar is appearing for Facebook
WhatsApp is being represented by Mr. Kapil Sibal and Mr Sidharth Luthra.
Mr. Narsimha, Additional Solicitor General, is appearing for the Union of India.
The IntevenorInternet Freedom Foundation which is supporting the Petitioner’s case is represented by Mr. K. V.Vishwanathan.
Bench:
The Bench is headed by Chief Justice Dipak Misra, who was a part of the 9 Judge Bench that held that the Right to Privacy as a fundamental right. And includes Justice Sikri, Justice Amitava Roy, Justice Khanwilkar, and Justice Shantangoudar.
Proceedings on 6/09/17
Today’s hearing is a continuation from the proceedings on 21st July 2017. The main issue is whether this petition is maintainable.
Let me explain what maintainability is: Whenever a case is presented before the court the preliminary question is whether is fulfils certain conditions for it to be entertained by the court. Impleading the right parties, seeking specific reliefs, whether the court can actually grant them etc. are some conditions.
Mr. Harish Salve has argued that it is maintainable as the relief is being sought against the State: the State is being asked to regulate data sharing and enact legislation to protect privacy rights. He has stressed the need for regulation of large corporations such as Whatsapp. Unregulated access to user data would allow the use of metadata with abandon, compromising safety.
WhatsApp argues that no one can read messages being shared by its users. Mr Datar and Mr Sibal have argued that other applications must also be made a party before ordering the setting up of a regulatory framework. They have cautioned that not including other companies would open up a Pandora’s Box. They also claim that it is difficult to function in an ambiguous atmosphere while a regulatory regime is being shaped.
Mr. Narsimha has affirmed that the Government is ready to implement a workable regulatory regime. He has insisted, however, that the Petitioners must make specific substantive arguments outlining the regulatory regime.
The acknowledgement of the fundamental right to privacy by the 9 Judge-bench last month could have a significant impact on this case. With a fundamental right to privacy now in place, some believe that it will be harder to pull off cases of exceptions to being subject to this right.
We will provide an update on today’s proceedings shortly. Stay tuned for the same.