'Privacy Of People More Important Than Your Money' :Supreme Court Issues Notice On Plea Against What'sApp's New Privacy Policy

It said that people's privacy must be protected in view of the allegation that users' data being shared with other companies.

"People have grave concerns about their privacy. You may be 2 trillion 3 trillion company. But the privacy of people are more important than your money," the CJI remarked.

The Bench also said it will have to consider if a similar petition, pending before the Delhi High Court, is maintainable when a Constitution Bench of the Supreme Court is already seized with the matter.

Background

The instant application was filed in the case Karmanya Singh Sareen & Anr. v. Union of India & Ors., which is a petition filed in 2017 raising privacy concerns following the merger of Facebook and WhatsApp. In 2017, the Supreme Court had referred the Facebook-WhatsApp privacy case to a five-judge bench.

Maintainability

Senior Advocates Kapil Sibal and Arvind Datar(appearing for WhatsApp and Facebook respectively) submitted that the main petition in this case was filed against the 2016 privacy policy of Whatsapp. They argued that the 2020 policy cannot be challenged by merely filing an intervention application and instead, a substantive petition must be drawn.

They further argued that the Delhi High Court has already issued notice on a petition challenging the Whatsapp policy and urged the Court to dismiss this application.

Sibal submitted,

"The earlier petition was filed against the 2016 policy. The new application challenges the new policy of Jan 2020. They are challenging the new policy without filing a substantive petition. Be that as it may. But the Delhi HC is already considering."

The CJI however said, "We will issue notice in this. We will see what to do about the Delhi cases later…We also need to see if the Delhi HC can consider when the matter is pending before the Constitution Bench."

Courtroom Exchange

Senior Advocate Shyam Divan (appearing for the applicant) told the Supreme Court that WhatsApp is discriminating between its Indian users and its users based in Europe. He said, "One set of privacy standards apply to Europe and a different set of standards apply to Indians. This happens when the Personal Data Protection Bill is pending… There is a huge differentiation between Europeans and Indians."

He urged the Court to make sure that WhatsApp does not use "lower privacy standards" for Indian users when compared to Europeans. He also urged that till the Personal Data Protection law comes into force, WhatsApp should not be allowed to share data with Facebook or any third party.

He further sought that the Ministry of Electronics & IT be directed to ask WhatsApp to not implement the new privacy policy till the privacy concerns are addressed.

[Note: The Central Government has already asked Whatsapp to review its updated privacy policy of 2021and to explain the rationale of the same.]

Divan submitted,

"It is reported in media that Government has sought explanation from WhatsApp on the new privacy policy. The company itself has extended the deadline for new privacy policy to May 15. In this backdrop, I am seeking a notice which is returnable before the 15th of May."

Responding to this, Sibal argued that no differential treatment is being meted out to Indian users. He submitted that the same policy is applicable across the world and a separate policy has been framed only for Europe, given their data privacy laws.

"My learned friend said WhatsApp is differentiating between India and Europe. The fact is that this policy is applicable to the rest of the world except Europe. Same policy is in US, Australia etc. In Europe it is different because they have a special law," Sibal said.

Adding to this, Datar said,

"Europe has a special law, the GDPR which is applicable to about 27 countries and that is why there is a special law.

They keep on saying we are sharing data, sharing data. That is not true. When we are complying with Central Ministry guidelines, how can Art 32 petition lie."

The CJI however observed,

"We are impressed with Divan's submission that while the Data Protection Bill is about to be brought into force, you (Whatsapp) are framing a policy to share data.."

He said that people are very concerned about their privacy and it is a general belief that their messages can be shared with Facebook. The CJI said,

"You must understand Mr. Datar, people have grave concerns about their privacy. You may be 2 trillion 3 trillion company. But the privacy of people are more important than your money.

We will tell you what we read in media. People think that when A messages B, the whole thing that A messaged B is disclosed to Facebook."

Datar responded that this is not the case and that Whatsapp's messages are encrypted end to end.

"Messages are completely encrypted. Even WhatsApp cannot see… We can file an affidavit saying that no personal information is being stored or shared," he said.

Senior Advocate KV Viswanathan mentioned before the bench a similar application filed by the Internet Freedom Federation.