by Kritika, CCG 

The petition filed against the Delhi High Court’s ruling on the challenge to WhatsApp’s privacy policy was heard by a bench of five judges of the Supreme Court last week. This decision upheld the updated policy, subject to a few restrictions. At the last hearing, the Court had directed the petitioners to frame questions of law that the Court will be required to consider.

The questions submitted by the petitioners focused on issues relating to the right to privacy of communication and the need to regulate platforms such as WhatsApp and Facebook to safeguard individuals’ privacy, among others. The petitioners’ counsel argued that WhatsApp and its parent company, Facebook had failed to respect users’ privacy rights and referred to WhatsApp’s policy, highlighting the ambiguity in some of the clauses. This emphasis on privacy comes in the backdrop of objections from Facebook’s counsel that the right to privacy could not be agitated before this Court, till it was authoritatively decided by a Constitution bench, and the Court’s own insistence to frame the issues in a different manner.

In the bench’s view, an important issue was that of choice and the freedom to choose. Counsel for Facebook’s immediate response to this was that aggrieved users were entitled to leave the service. However, Justice Dipak Mishra responded stating that freedom to choose contemplated affirmative choice, and not mere negative choice. Questions framed by the petitioners’ counsel were taken on record and the respondents’ counsel was also given liberty to file their propositions of law. However, the Court is yet to frame the questions which it will ultimately decide.

In addition to this, the Internet Freedom Foundation, an organisation that advocates for digital rights in India, filed an application to be impleaded in the present case. The senior counsel appearing for IFF argued that the privacy risks in the instant case arose from the sharing and use of metadata by the two companies. Their application was allowed by the Court.

Crossposted with permission from CCG at NLU Delhi.

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MediaNama’s coverage and analysis of this issue

Apr 6, 2017: Will regulate WhatsApp and other messaging services: Centre tells SC
Nov 2016: WhatsApp to stop sharing user data with Facebook in the UK
Sep 2016: Germany blocks WhatsApp from sharing with Facebook
Sep 30, 2016: Contrary to reports, WhatsApp will comply with Delhi HC order on user data sharing
Sep 26, 2016: On the Delhi HC asking Whatsapp to scrub user data (Our views on the Delhi HC judgment)
Sep 15, 2016: WhatsApp cites encryption as it opposes plea for privacy violation
Sep 01, 2016: Whatsapp backtracks on Privacy (a point of view from CCG NLU, Delhi)
Sep 01, 2016: PIL against WhatsApp asks for prohibition on user data sharing
Aug 29, 2016: Offer valid till… (an editorial viewpoint)
Aug 26, 2016: What, how, and why WhatsApp is collecting data (an analysis of its terms and conditions)

Also read: the privacy nightmare no one in India talks about

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Disclosure: MediaNama founder Nikhil Pahwa is a co-founder of the Internet Freedom Foundation, which is a petitioner in this case. IFF’s filing is available here, published by Legally India. A note from IFF about this filing is available here.