New PIL Challenging WhatsApp Updated Privacy Policy: Delhi High Court Seeks Centre's Response

The Bench of Chief Justice D. N. Patel and Justice Jasmeet Singh sought their response on a PIL petition filed by one Harsha Gupta (an Advocate and Educationist) through Advocates Vivek Sood (Senior advocate) and Dhruv Gupta.

The Union Of India, WhatsApp, and Facebook have been impleaded as the respondent parties in the petition.

Notably, the petition challenges WhatsApp's general terms of services as well as WhatsApp Business terms of services as violative of the provisions of the IT Act and the right to informational privacy which is implicit in the right to privacy recognized under Article 21 of the Constitution.

The Plea states that the information and data provided to WhatsApp by the users, as per the terms of services, is used by WhatsApp not only for rendering the services for which the users have enrolled, but also for sharing this information and data with the Facebook Companies without providing the option to the users to opt out of such arrangement.

It further submits that WhatsApp also collects various kinds of information and data of the users of its services not entirely relevant for providing the main services of the WhatsApp App i.e., messaging and communication.

It also states,

"Such information and data is then used to develop, operate, provide, improve, understand, customize, support, and market WhatsApp's business services, its other services, and the services and products of the other Facebook Companies."

Further, it adds,

"The said terms of services are on the face of it violative of the informational privacy of the users of the App, which is implicit in the right to privacy recognised under Article 21 of the Constitution as held in the landmark judgment of the Supreme Court of India titled K.S. Puttaswamy v. U.O.I."

The petition avers that the statutory provisions of the Information Technology Act, 2000 and the Rules made thereunder explicitly provide for the option to the users to deny the collection and/or use of the data for purposes other than that for which the information is sought and that the Violation of such provisions entails compensation for failure to protect data under section 43A.

"Not only this, the said terms of services are void inasmuch as they are against the public policy and thus must be struck down under the contract law too. Further the said terms of services are instances of abuse of dominant position by WhatsApp through making a conclusion of contracts subject to acceptance of supplementary unrelated obligations," concludes the PIL.

Prayers in the Petition

• A direction to the Union of India to ensure that the information and data of the users of these kinds of service providers is protected from being used without the consent of the provider and further to ensure that such consent is not for the namesake but free in its flair and form.
• Quashing of the impugned terms of services inasmuch as the same does not provide for opt-out option to the users of the services of WhatsApp.
• A direction to WhatsApp to incorporate opt-out option in the terms of services of its Privacy Policy.
• A direction to WhatsApp to collect and use only that much of the information and data of its users which is necessary for the purpose of which the said information and data is collected, in case the user opt-out of the impugned terms of services of its privacy policy.
• A direction to WhatsApp to desist from violating the informational privacy of the users of its App and vitiating the free consent clause inherent in every contractual agreement.

Earlier, responding to public interest litigation before the Delhi High Court, the Centre had sought that WhatsApp be restrained from implementing its new privacy policy and terms of service dated 04^th January 2021 pending adjudication on the case by the court.

Further, in March 2020, in a significant development, the Competition Commission of India had ordered a probe into the new privacy policy of WhatsApp, after making a prima facie observation that it was violative of the Competition Act 2000.

"..the Commission is of the considered opinion that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct, in the garb of policy update", said the order passed by the CCI.

Importantly, last month, a single-judge bench of Justice Navin Chawla of the Delhi High Court rejected Facebook Inc and its subsidiary WhatsApp's challenge to the order by the Competition Commission of India directing a probe into WhatsApp's new privacy policy for being allegedly anti-competitive.

The Court had said that it found no merits in the petition and refused to quash the CCI probe. The bench had reserved its verdict on Apr 13 on Facebook Inc and its subsidiary WhatsApp's challenge to a Competition Commission of India (CCI) order directing for a probe into WhatsApp's new privacy policy for being anti-competitive.