"No Deferment Of Policy On 15th May, Users Will Be Persuaded To Adopt Policy" WhatsApp Clarifies Before Delhi High Court

Delhi High Court has on Monday been informed by WhatsApp that it does not plan to defer its policy on May15th, and the users who do not consent to its privacy policy will not be deleted that day, and will be persuaded to adopt it. However it has clarified that if they fail to adopt the policy, they will eventually be disconnected.

"We haven't said we will not implement the policy, Infact we have said 15th May is the date and that we will persuade the users of WhatsApp to come on board. If they still don't, under the law and rules itself we are entitled to say that you should not use WhatsApp service." Senior Counsel Sibal said.

A division Bench of Chief Justice DN Patel and Justice Jyoti Singh was hearing the pleas filed challenging the new privacy policy of WhatsApp.

The submissions were made after Sr Adv Vivek sood's statement saying that WhatsApp has on 14th May gave a statement that they will not implement the policy of 4th Jan 2021 for the next few weeks.

"WhatsApp is providing services to 46 crore citizens, almost 1/3 of the population. And you are saying you will not implement the policy for next few weeks. Perhaps they are conscious of the PIL pending before your Lordships. Meanwhile they will not transfer any information to their group company Facebook. Let the respondents give a statement." Sood said.

Senior Advocate Datar objected and stated that there is no question of giving any undertaking. He added that they can explain how privacy policy doesn't make any change at all.

ASG Sharma appearing for the Centre submitted that according to the government, they are in vibration of IT Act and rules and counter affidavit brings out the violations.

""They have made a statement and the press has carried it. But its alright that Mr Sibal wants to explain that or disown that, its his wish and his prerogative. We will not come between that." ASG Sharma remarked.

Courtroom Exchange Regarding Implementation of Policy:

During the hearing when the Bench got disconnected, Counsels discuss amongst each other, ASG stated that there's communication on WhatsApp's website regarding deferment of website.

Sibal clarified that there is no deferment of 15th May, and the same has been stated in the affidavit and explained in FAQs. The users will be persuaded to adopt the policy, but if they still refuse to adopt the policy they will be deleted.

"If there's no deferment why persuade them" ASG asked.

Sibal responded and stated that "We will still persuade them, as under the rules, if they don't agree we can disconnect them."

Mr Sibal reiterated that the firm answer is, that there is no deferment on may 15th, all that has been said is that on 15-16th May, their accounts will not be deleted, and they will be persuaded. However if they still don't, slowly ultimately they'll be deleted.

Adv Kirtiman Singh that according to statement Thats been issued, the policy states that at some point of time after they are unable to convince consumer, they will be disconnected.

Sibal stated that Each consumer/ customer will be dealt with separately. Its not a decision to disconnect everybody. Each customer will decide for himself.

ASG Sharma, submitted before the Court that there is a statement on WhatsApp's official website that WhatsApp will continue to provide reminders to users in weeks to come to educate them about the policy but will not delete account. There is an assurance that there would be no interceding the privacy of chats, messages and calls by them.

"This being the basis, and if Mr Sibal choses to state and affirm that their clients will conform to Indian Law and rules framed thereunder and Mr Datar files the counter affidavit, the counter filed in one of the matters be taken as stand of the Union, the matter could be taken next Monday. "

Senior Advocate Datar also suggested that the matter be taken up on Monday as they could put on note that no violations or compromises on privacy been done and all misgivings are completely uncalled for.

Issue of Validity of Privacy Policy Under Indian Law:

During the hearing ASG stated that "We've written to them to comply with indian rules, and reply is is awaited. The Fact of the matter is there has been a privacy policy for all this while. India has the largest political of WhatsApp users, and till the time the court hears the matter, there is an imminent need to maintain a status quo.

Adv Manohar Lal submitted that it is only in parts that they have implemented their policy. They are not allowing the users who haven't consented to privacy policy.

Mr Datar objected to the statement and stated the matter is also pending before Supreme Court.

Adv Manohar Lal, disagreeing with Datar's statement submitted that the matter before the Supreme Court is with regards to the 2016 policy.

Both Senior Counsels Datar and Sibal objected to the statement and said that it's completely wrong, as the new policy has also been challenged.

Adv Lal argued that they are sharing information with third party, and not deleting the information which has been to third party or someone who reposts the consent, being user of that information.

ASG Sharma stated that there are news report stating that there has been a deferment.

"can whatsapp today confirm that privacy policy conforms to IT laws 2010 and rules made thereunder." ASG asked.

" Yes we confirm" Sibal said.

" please file the affidavit then." ASG said.

Datar said that the court may grant a week's time and they would submit a detailed affidavit.

"Let them point out what rules we have breached and we will respond." Mr Sibal said.

Sr Adv Vivek Sood submitted that the issue in this matter is, if we have a public policy on privacy in India, and if its there, does it apply to the WhatsApp terms of services in India or not.

Sood further referred to the Puttaswamy judgement, stating that Supreme Court had recognised right to informational privacy.

At this juncture , the Bench inquired if all replies have been filed in all the three matters listed before the Court.

"Once we start arguments, no pleadings should be incomplete. Thereafter we won't allow to file replies. If someone needs time to file reply, ask for time" the Bench noted.

After the Court decided to hear the matter on June 3rd, ASG Sharma stated that Mr Data and Mr Sibal's statement that their clients will conform to Indian Law, be recorded and that no accounts will be deleted.

Sibal submitted that they have been conforming, and will conform. He also objected to ASG's request seeking status quo as of today, stating that in that case they would be getting a stay.

Delhi High Court Issues Notice: The Bench was reminded that notice hasn't been issued in one of the petitions.

The Bench issued notice in one of the matters (Chaitanya Rohilla vs Union of India), which is a plea filed seeking directions for the framing of rules or guidelines to protect privacy and data of the citizens from all apps and organisations operating in India for an option to be given to the users each time any data is collected from them.

The Bench has listed the matter on June 3rd, and stated that all the pleadings and replies be filed in the meanwhile.

"Even If its a repetition, you file it." CJ said.