WhatsApp Obtaining 'Trick Consent' On 2021 Privacy Policy": Centre To Delhi High Court

In an additional counter affidavit filed before the Delhi High Court in the case against WhatsApp's new privacy policy of 2021, the Central Government has informed the Delhi High Court that WhatsApp is indulging in obtaining "trick consent" from its users to accept its contested privacy policy of 2021.

The centre has stated that this is being done by "pushing notifications" to users on the same. The centre has sought for an order restraining WhatsApp from sending such push notifications to the users.

The government claimed that users who have not accepted the 2021 policy, are being bombarded with such notifications on a regular basis, with the overarching plan being to get the entire existing user base committed to the policy before the enactment of the Personal Data Protection (PDP) Bill - which will be the prevailing law on the subject.

"Respondent No.2 (WhatsApp) has unleashed its digital prowess to the unsuspecting existing users and would like to force them to accept the updated 2021 privacy policy by flashing such notifications at a regular intervals. The game plan is very clear, i.e., to transfer the entire existing user base committed to updated 2021 privacy policy before the Personal Data Protection (PDP) Bill becomes the law," the affidavit stated, calling for a thorough and detailed investigation on the subject.

Central government also informed the Court that the Competition Commission of India (CCI) has formed a prima facie opinion that WhatsApp has contravened the provisions of Section 4 of the Competition Act, 2002.

The affidavit further states that this decision of the CCI was also upheld by a Single Judge bench of the Delhi High Court itself, upon challenge.

The affidavit then points out a communication sent by the Centre to WhatsApp dated May 18, on the deferral of the roll-out of the privacy policy beyond May 15, wherein it has stated that, "The deferral of the privacy policy beyond 15th May 2021 does not absolve WhatsApp from respecting the values of informational privacy, data security and user choice for Indian users. The changes to the Privacy Policy and the manner of introducing these changes including in FAQ undermines these sacrosanct values and harms the rights and interests of Indian citizens. As you are doubtlessly aware, many Indian citizens depend on WhatsApp to communicate in everyday life. It is not just problematic, but also irresponsible, for WhatsApp to leverage this position to impose unfair terms and conditions on Indian users, particularly those that discriminate against Indian users vis-a-vis users in Europe."

The affidavit was filed on a PIL by Dr. Seema Singh, Meghan and Vikram Singh seeking a direction to the Central government to order WhatsApp to either roll back the new privacy policy or provide an option for users to opt-out.

Earlier, WhatsApp had told Court that users could simply stop using the app if they did not consent to the policy, and that no opt-out option was necessary for the same.

The government has claimed that the policy violates the Information Technology Rules, 2011 and that WhatsApp may be restrained from implementing the new policy till the challenge to the validity of the policy is finally decided.