The Supreme Court on Wednesday directed WhatsApp to give wide publicity in the media about its undertaking to the Union government in 2021 that Indian users are not bound to accept the company’s new contentious privacy policy and that the functionality of the messaging platform will not be affected till a personal data protection regime is in place.
WhatsApp and its holding company Meta (earlier Facebook) agreed to issue advertisements in the newspapers but maintained that “there is no such thing as a free lunch in this world,” and, thus, users who want to use both WhatsApp and Facebook cannot shake off advertisements. According to the companies, users should stop using Facebook if they do not want ads because there is a limited sharing of information between the two platforms.
A constitution bench, led by justice KM Joseph, issued the interim directive on the publication after noting that many users in India may not be aware of WhatsApp’s letter to the Union government in May 2021 wherein the company conceded that it will not limit the functionality of WhatsApp for the users who are yet to accept the new privacy policy. The 2021 policy entails sharing of WhatsApp user data with Facebook (now Meta), which has been legally challenged as being violative of privacy rights.
The bench, which also comprised justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, took on record the statement made by WhatsApp in its May 2021 letter and said that the company will abide by the terms of the letter till the court hears the matter next in April.
“We further direct that WhatsApp will give publicity of this aspect for the customers of WhatsApp by giving the advertisements in five leading newspapers two times over the next one month. The advertisements will necessarily incorporate the stand taken in its May 2021 letter to the government,” the order said.
The bench, however, refrained from issuing any directive on giving a way out to existing WhatsApp users who have already opted to share some data, saying that the issue will require extensive deliberation owing to involvement of various aspects. It noted that since the bench cannot consider the entire gamut of issues immediately, it will not be justified to pass an order on a plea made by the petitioners in the case for a directive to WhatsApp to treat Indian users on a par with European counterparts.
During the proceedings, the bench asked senior counsel Kapil Sibal, representing WhatsApp, if the company was willing to offer the same policy to Indian users as the app has in its users for Europe.
“That’s for the government to decide. Even the proposed bill by the government doesn’t talk about that. There are 139 other countries apart from European users. Why should Indian users be treated on a par with the European countries and not the other 139 countries? We cannot have a separate policy for one country. There is not a single complaint from 600 million users about data being misused,” replied Sibal, who was also assisted by senior advocates Mukul Rohatgi and Sidharth Luthra for WhatsApp.
As the bench heard a clutch of petitions which have challenged the 2016 as well as the new 2021 privacy policy of WhatsApp on the ground of breaching data privacy and being discriminatory against the Indian users, the court at one point raised concerns about the barrage of advertisements that affect users’ experience and suggested data sharing between the platforms.
But WhatsApp had a clear stance. “There is no such thing as a free lunch in this world,” Rohatgi told the bench, adding users cannot complain against advertisements if they want to be on WhatsApp as well as Facebook. The Meta-owned company added that if users don’t want any ads, they will have to use only on WhatsApp.
Rohatgi emphasised that WhatsApp and Meta are after all private companies and that they cannot be treated as State. “Use it or leave it…One cannot say that I want to take your service but I want to do it in a certain way. So, you tune your service according to me. You have telegram, signal, Viber. You have so many services. But if you choose to use WhatsApp, it cannot be,” he said.
The submissions came as WhatsApp and Meta urged the court to wait for the new data protection law which is to be tabled in the second half of the Monsoon session. The lawyers argued that the matter involved complex issues of data protection, privacy, free speech, rights and responsibilities of intermediaries as well as business aspects and therefore, the court should await the Centre’s law.
Senior advocate Arvind Datar, representing Meta, pointed out that there is no statutory vacuum in the present matter since there are regulations in vogue to address concerns and provide for suitable action.
The government, on its part, also said that the court should wait for the legislative process to culminate. Attorney general R Venkataramani and solicitor general Tushar Mehta submitted that many aspects of the present litigation may be addressed finally by the new law following the bill passes through the parliamentary process.
Mehta emphasised that the government is batting for Indian users and that the Centre’s stand is that WhatsApp cannot discriminate between India and other countries. “You follow for Indians what you have for European users,” he added.
Senior advocates Shyam Divan, appearing for the petitioner law students – Karmanya Singh Sareen and Shreya Sethi who challenged the 2016 privacy policy, opposed the request for deferment of the proceedings, contending that the judicial process cannot be impeded by the uncertainty around a new bill that may have to go to standing committees etc. He highlighted that the first such request of deferment by the Centre on the ground of a possible law came in 2017 but the legislation is yet to see the light of the day. Divan also pressed for an interim order to ensure WhatsApp does not transfer any user data to other entities.
The bench, after hearing all sides, observed that but for the time constraints and the fact that two judges on the constitution bench are retiring in June this year, it would have heard the case at length right away. It also pointed out that the government has initiated the legislative process for a new personal data protection law.
For the time being, the bench said, it would issue the interim directive for the benefit of the users and the matter can be set down for an extensive hearing at the later date.
The Union government in November made public a draft data Digital Data Protection Bill — the fourth iteration of a planned law that is meant to give the legal framework to the 2017 Supreme Court ruling on the right to privacy.
The new draft has attracted both praise and criticism, the first for its light-touch and technology agnostic approach to regulating a dynamic space, and the second for the significant exemptions it grants to governments and government agencies when it comes to using the data of individuals.
Speaking at a Google India 2022 event on December 19, Union information and technology minister Ashwini Vaishnaw on Monday said that the new bill is likely to be introduced in Parliament during the monsoon session later this year, include laying down certain conditions for how personal data — defined as “any data about an individual who is identifiable by or in relation to such data” — of Indian citizens will be handled, the obligations of those that collect it and the powers of the government in accessing such information. The next monsoon session of the Parliament is expected to commence in July 2023.
