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The Whatsapp privacy matter, which has assumed huge importance in social media and among the public in general, is being heard by the Supreme Court bench of Justices Dipak Misra, A K Sikri, Amitava Roy, AM Khanwilkar and Mohan M Shantanagoudar.

The matter has been filed by Karmanya in the Supreme Court on privacy concerns regarding Facebook and its current subsidiary Whatsapp. The matter is about serious concerns regarding the sharing by Faceboook of Whatsapp’s data to personalize its content on its platform.

On May 15, the basic allegation by the petitioner was that consent on the change in user policy has been obtained from users by Whatsapp in a deceptive manner, which failed to enlighten the users as to how his or her constitutional rights are being hampered. The petitioners also argued that India needs laws like European countries have to protect user data. Till such laws are framed, this sharing of data should be put on hold.

Senior advocate KV Viswanathan, appearing for the petitioner, started by explaining that there are five parties in this matter and that he will be giving an overview of the whole process of data collection and the issues involved therein.

He said that Facebook acquired Whatsapp, but it continues to retain its independent entity. “A lot of data is collected by both the parties, which is in the form of primary data and metadata. But in this country we don’t have a data protection agency like they have in European countries. So in the absence of any such agency and statute we have no way of knowing as to what is the exact nature of such data.”

He pointed out that that technology has outpaced the regulations and there is a need to set up regulations. He also pointed out that his argument is not just restricted to privacy. There are many other fundamental rights which are being violated because of a change in Whatsapp’s privacy policy.

Viswanathan made another critical observation. He said that just because a person signs an agreement, it cannot take away his constitutionally protected fundamental rights. He said he would asking for directions to the government to set up a regulatory body in this regard and also to frame a data protection framework. Till then, he argued, the apex court should give guidelines and stop Whatsapp from sharing user data with Facebook.

He also said that this whole process of collecting, collating and transferring of data is in violation of article 19(1)(a) and 21. Also, the government has an obligation to form a policy to keep a check on these acts.

Senior advocate KK Venugopal, arguing for the respondent, interjected, saying he would like to know whether Vishwanathan was arguing on the right to privacy or on violation of other rights.

Vishwanathan replied he was not arguing on the right to privacy, “but my main argument is when I am sending a text to ‘X’, can ‘Y’ come in between and read the same? In other words the privacy clause of Whatsapp is violative of my right to freedom of speech and makes my right to speech vulnerable.”

He presented some data for the benefit of the bench. He said Facebook acquired Whatsapp at $22 billion, though the revenue of Whatsapp at that time was mere $10 million. Whatsapp is being used by 160 million people in India and currently has around 1 billion users worldwide. It is supposed to cover a third of the Indian population by 2020.”

He said: “What Facebook wants to do is this. They are coming up with targeted advertising, having collected user metadata from Whatsapp. This data will help in the making of targeted ads which will help them reach their revenue goals. In this process, they are exploiting user’s personal preferences.”

He then gave examples as to how people’s personal preferences, demographic, geographical locations and even sexual orientations can be used to form targeted audiences for the advertisers.”

He also said that this had nothing to do with the content of the messages. All this data can be taken from the name of the group on Whatsapp or the status or the display picture.

He pointed out another window having opened. He said that a person’s mobile number is necessary to use Whatsapp. This can then be tracked back to know the usage data, provider’s name, Internet speed and the individual can be targeted by other service providers.

At this point senior advocate, Siddharth Luthra, arguing for Facebook, interjected, saying that advertisements based on user location is just like newspaper advertisements, which you may publish in the Noida edition but not in the Delhi edition. He said “the issues which are being raised here were never raised in the High Court”.

Vishwanathan said he will show how Whatsapp data is a bonanza for Facebook when it comes to user targeted ads. He then read from Whatsapp privacy policy documents and pointed out that “the company admits that it collects service and activity related user data including log files and transactional information. Also in certain cases they automatically collect device specific information”.

He then further pointed out that user data such as IP address and multimedia files shared over the platform are also collected. Also the platform uses and collects the contact list with which an individual interacts over the platform.

Vishwanathan said the Whatsapp policy clearly states that the platform shares the user data with affiliated third party companies which includes Facebook. And the data is used for product suggestions for example friends and advertisements using the individual data. It also says while Whatsapp doesn’t share the messages as they are encrypted but they also admit that FB can use messages for providing their services and advertising purpose. He said it is “contradictory” in itself.

Also, he said, “the policy says that they share messages only with users’ consent, but how that consent is obtained is something that needs to be questioned.”

He then read the standard form contract which is used to get the consent of the users. He submitted that Germany has a controller for data protection and there is a standing order of the controller which stops Whatsapp from sharing user data with third parties.

Venugopal interjected, saying that this should be looked in the context as “they have a comprehensive policy and we don’t”.

Vishwanathan submitted that in England the company has undertaken to not share the data “and here they are taking a completely opposite stand”.

He also said that at the time of acquisition Whatsapp said they won’t share any user data, “but in 2016 they changed their privacy policy and in a very deceptive manner gave a 30-day window to users to give their consent by way of standard form contract. Now they are using that data for targeting the users with data specific advertisements.”

Justice Sikri made a pertinent point when he said: “But all this data is also otherwise available. What you are saying is that every service provider must take your permission before using that data. Once you are on Google all this data becomes available.”

To this Vishwanathan said, that then in that case Google should also be arraigned.

The bench said: “You must built up your argument on how your right to correspondence is being violated. If you’ll go into the consent part then it will become a contractual issue.”

Vishwanathan summarized his argument and stressed upon the European legislations and data protection policies in this regard. He further reiterated that consent has been obtained from users in a deceptive manner as any individual would fail to fully grasp the contours of the agreement and its effects on constitutionally guaranteed rights.”

Court adjourned for lunch.

India Legal Bureau

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