Supreme Court issues notice to Facebook, WhatsApp seeking response on plea challenging change in privacy policy

The Supreme Court on Monday issued notice to Facebook and WhatsApp and sought their response on a plea challenging WhatsApp's latest privacy policy which was introduced in January this year in India. A Bench headed by Chief Justice of India SA Bobde observed that people's privacy must be protected in view of the allegation that users data was being shared with other companies.

"There is a concern that circuit of messages is revealed by WhatsApp," the apex court observed. The Bench further said that citizens have "great apprehension about loss of their privacy" and they think that their data and chats being shared with others and it has to be looked into.

"You (WhatsApp and Facebook) maybe two or three trillion companies but people value their privacy more than money. It is our duty to protect their privacy," the Bench told counsels appearing for Facebook and WhatsApp. The CJI further told the companies' counsels, "We are telling you what we heard and read. People think that if A sends a message to B and B to C. The circuit of messages is revealed to Facebook."

During the hearing, senior advocates Kapil Sibal and Arvind Datar appearing for WhatsApp and Facebook respectively denied the allegations and called this "misinformation". Senior advocate Shyam Divan, appearing for petitioner Internet Freedom Foundation, told the Bench that there is a great amount of metadata which is shared for profit and is a privacy concern.

"We pray that privacy standards are not lowered for Indian users by WhatsApp... They be barred from sharing data with Facebook," Divan contended. Divan said in January this year WhatsApp came up with the new privacy policy which undermines the privacy of Indian users compared to the European counterparts.

This policy was supposed to be brought in by February 8, 2021, and Indians were asked to migrate to the new privacy policy, Divan contended, adding that this deadline has been extended to May 14 and cited differentiation privacy policy between Europeans and Indians users. Sibal and Datar denied differential treatment between Europeans and Indians in its new privacy policy. Sibal appearing for WhatsApp argued that Europe has a special law (General Data Protection Regulations), which India doesn't have and the company will follow the law if Parliament makes it.

Solicitor General Tushar Mehta appearing for Centre said that the companies cannot share data of users and data must be protected. The court then issued notice to WhatsApp and Facebook and posted the matter after four weeks.

The top court was hearing an application filed by Internet Freedom Foundation challenging WhatsApp's latest privacy policy which was introduced in January in India. The petitioner sought guidelines to safeguard the personal data and privacy of over 400 million Indian WhatsApp users. It has sought an interim stay on the operation of the new Privacy Policy of WhatsApp. The plea stated that the 2021 Policy of WhatsApp is "highly invasive and has been unilaterally forced upon Indian internet users".

It has urged the Court to grant an ad-interim order, restraining the sharing of any personal data of users by Whatsapp with Facebook for marketing or other purposes. The intervention application was filed in an appeal filed by Karmanya Singh Sareen and Shreya Sethi in 2017, which had challenged the 2016 privacy policy of the WhatsApp. The matter is being heard by a Constitution Bench of the Supreme Court.

It requested the Court to direct the WhatsApp to provide the "same standard of privacy protections to its Indian users as it is providing to users in the European Region". It also asked Court to direct to provide its users with an opt-out option while using its services, to allow users to opt-out of sharing their data with Facebook for marketing and advertising purpose. In January, WhatsApp had introduced its privacy policy mandating its users to accept its terms and conditions, failing which the accounts and services would be terminated after February 08, 2021, for the respective user.

After facing criticism over the privacy policy, WhatApp took to micro-blogging site Twitter clarifying that "no one will have their account suspended or deleted on February 8 and we will be moving back our business plans until after May."