“You Maybe a $2 million or a trillion company but people are concerned about their privacy,” said Chief Justice of India S.A. Bobde while issuing notice to WhatsApp in an application seeking a stay on the operation of its new privacy policy. 

The applicants had prayed that WhatsApp shall not apply lower privacy standards for Indians and shall apply the same standard of privacy as is being applied to Europeans.

A three-judge bench of the Apex Court headed by Chief Justice Bobde and Justices A.S. Bopanna and V. Ramasubramanian has asked WhatsApp, an American messaging company with voice-over service, owned by Facebook, Inc. to file its reply to the petition concerning the privacy of Indian citizens. 

Senior Counsel Shyam Divan, appearing for the Applicants, said that WhatsApp was differentiating between Indians and Europeans in terms of privacy standards.

Senior Counsel Arvind Datar, appearing for Facebook, submitted that the new privacy policy is completely a new cause of action. 

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“People have grave apprehensions of loss of privacy. You may be a 2 million or trillion company but people are concerned about their privacy,” 

-said the Chief Justice. 

The Court was hearing the application filed by law students, Karmanya Singh Sareen and Shreya Sethi, in their pending case (Karmanya Singh Sareen & Anr. Vs Union of India Ministry of Communications Department of Telecommunications Sectetary & Ors.), after WhatsApp updated its user policy on January 4, 2021. 

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The petitioners contended that the manner in which the new privacy policy of WhatsApp was framed and the terms of the new policy result in a grave affront to the fundamental right of privacy of crores of Indian citizens who use WhatsApp on a daily basis.

The Supreme Court has declined to entertain plea filed by the Confederation of All India Traders challenging WhatsApp’s new privacy policy for being arbitrary and unconstitutional.

A three-judge bench of Chief Justice S.A. Bobde, Justices A.S. Bopanna and V. Ramasubramanian has granted liberty to the petitioner to approach the High Court. 

The petition was filed by Advocate Abir Roy on behalf of the Confederation of All India Traders (CAIT through Advocate-on-Record Vivek Narayan Sharma). The petitioner had submitted that the policy is encroaching upon various fundamental rights of the citizens granted by Constitution of India.

The petitioner organization had urged the Court to frame guidelines and schemes to govern big technology companies like WhatsApp in order to protect the privacy of citizens and businesses.

The petitioner had also brought the Court’s attention to the stark differences in privacy policies adopted by the European Union and India and how the data of Indian users can be misused by big tech companies.

CAIT national president B.C. Bhartia and Secretary General Praveen Khandelwal alleged that WhatsApp has adopted the “my way or highway” approach which is arbitrary, unjustified, unconstitutional and cannot be accepted in a democratic country like India.

Moreover, it was stated that WhatsApp has been fraudulently collecting personal user data with the promise of not sharing user data and strong privacy principles. In 2014, after the acquisition of WhatsApp by Facebook, when the users had started doubting the privacy of their data and were in fear that their personal data will be shared with Facebook, WhatsApp promised that nothing would change in the privacy policy after the acquisition.

However, in August 2016, WhatsApp retracted from it and introduced a new Privacy Policy which severely compromised the rights of its users and made the Privacy rights of users completely vulnerable. Under the new privacy policy, it allowed the sharing of personal data with Facebook and all its group companies for commercial advertising and marketing.

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“Since then, the company has been altering its policies to collect and process a wider range of information, and share the same with third party applications,” stated in the petition. 

The Central government informed the Delhi High Court on Monday that it has sent a notice and questionnaire to WhatsApp seeking clarification on its new privacy policy. 

The single-judge bench of Justice Sanjeev Sachdeva was hearing the matter through video conferencing. During the hearing, Additional Solicitor General (ASG) Chetan Sharma sought time to place the WhatsApp response on the queries of the government on its new privacy policy.

The ASG told the Court that Centre has taken a strong note of the New Privacy Policy, which is giving differential treatment to its Indian users and is a cause of concern for the government. 

The ASG also told the court that an opt-out option to not share data with Facebook has been given to European users of WhatsApp, but it has not been given to Indian users, treating them with an “all or nothing approach”. He also said that a Parliamentary Standing Committee is already discussing the Personal Data Collection Bill.

“This differential treatment is certainly a cause of concern for the government. The government is also concerned about the Indian users being subjected to these changes rather unilaterally by not providing them the ability to opt out,”

-he said. 

The court was hearing a plea by lawyer Chaitanya Rohilla challenging the new privacy policy of WhatsApp, contending that it violates the Right of Privacy of the citizens.

The plea has been filed through Advocate Manohar Lal who has alleged that WhatsApp has put a “Damocles’ sword on its users” to accept its new privacy policy. The updated policy virtually scrutinises the personal profile of a user, he said. 

The plea has also said that the new norms also jeopardise national security by sharing, transmitting and storing the users’ data in some another country.

Senior Counsel Kapil Sibal, appearing for Facebook, questioned the locus of the petitioner and said this is between WhatsApp and the Government and the court cannot intervene when there is a regulatory authority to look into the matter. Appearing for WhatsApp, Senior Counsel Mukul Rohatgi also told the Court that government has written to them seeking clarification on the new privacy policy. He said that they would give their response to the government by Monday.

Advocate Manohar Lal told the court that the policy is not in terms of the laws of the company. Further, he stated that the sharing of data is a serious matter of threat to the country’s security and democracy as the information is shared globally.

During the hearing, Justice Sachdeva reiterated that WhatsApp is a private application and voluntary where the petitioner can uninstall it in case he/she has concerns. The court also noted that when the government is already looking into the matter, then no orders are called from the court.

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The Court has adjourned the hearing till next date i.e. March 1, 2021.