Plea against new WhatsApp Privacy Policy: Delhi HC issues notice to DoT and TRAI

Delhi High Court has issued notice to Department of Telecommunications (DoT) and Telecom Regulatory Authority of India (TRAI) on a Public Interest Litigation filed by two students.

The Petitioners contended that on 26th August 2016, they realized that Whatsapp has sought to suddenly change its Privacy Policy proposing to make drastic changes and severely compromises with the rights of the users of Whatsapp service. It has sought to alter / change the most valuable, basic and essential feature of this internet based messaging service, by unilaterally threatening to take away the protection to privacy of details and data of its Users and sharing the same with Facebook and all its group companies including for the purpose of commercial advertising and marketing.

They submitted that a façade is being created as if a consent is being taken from the Users before the alteration / change of the essential and basic feature of this service – is carried out. This façade collapses on its own weight in as much as this basic and essential feature of non-sharing of data / details of Users, in any manner whatsoever, cannot at all be changed. Further, the manner in which so-called consent is sought to be taken is highly deceptive in as much as almost the entire community of Users of Whatsapp in India are not equipped to even read, much less comprehend, the consequences of the terms and conditions on the basis whereupon, Whatsapp is pretending to obtain consent of the Users.

According to the Petitioners, the new Privacy Policy is in stark contrast to the Privacy Policy existing from 7th July 2012. In its first revised modification on 25th August 2016, Respondents No. 2 to 4 have introduced this Policy which severely compromises the rights of its users and makes the Privacy rights of users completely vulnerable.

Hence the Petitioners have prayed for the following reliefs

(A) Issue a writ of prohibition or any other writ or direction in the nature thereof prohibiting respondents no. 2 to 4 from sharing, in any manner whatsoever, details and data of every kind of the subscribers / users of Whatsapp with any entity including Facebook or its family of companies;

(B) Issue a writ of mandamus or any other writ or direction in the nature thereof directing the respondent 1 and 5 or any other appropriate authority to discharge their executive, statutory and all other obligations in relation to protection and safety of privacy of details / data of every kind of the subscribers / users of Whatsapp all over the territory of India by taking all necessary steps / actions in discharge of their executive as well as statutory functions including by framing rules / regulations / guidelines for the protection of rights of citizens including the safeguarding and securing the privacy of citizens by ensuring that mobile application providers such as “Whatsapp” and other internet based messaging services do not compromise, share and/or exploit the information and data including messages, audio, video and other information of users in any manner whatsoever;

(C) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No.1 and 5, to take all actions including steps towards making Rules under Section 87 of the Information Technology Act, 2000 so as to regulate the functioning of Respondents No.2 to 4 and other similarly placed internet based messaging services including their Privacy Policy for handling of or dealing in personal information including private messages / photos / conversations / audio messages / videos / documents & data so as to ensure that the privacy rights of the users are not compromised and are duly protected;

(D) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing Respondents No.2 to 4 to obtain / secure the consent of only those Users who are willing to specifically write to Whatsapp [upon clearly understanding / comprehending the import and extent of the sharing of data / details of the Users proposed in the new Policy of Whatsapp] and the complete / absolute privacy and not sharing details / data in any manner whatsoever – must remain continued for all other Users of Whatsapp;

(E) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No.1 and 5, and any other authority, to formulate appropriate Guidelines so as to regulate the functioning of Respondents No.2 to 4 and other similarly placed internet based messaging services including their Privacy Policy for handling of or dealing in personal information including private messages / photos / conversations / audio messages / videos / documents & data so as to ensure that the privacy rights of the users are not compromised and duly protected;

(F) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No.1 and 5, and any other authority, to formulate appropriate Rules / Guidelines so that it is made mandatory for Respondents No.2 to 4 and other similarly placed internet based messaging services to duly inform its users about the actual and true import of their Privacy Policy in respect of the information provided / shared by the users and further to safeguard the rights of minors;

(G) Issue a writ of prohibition or any other writ or direction in the nature thereof prohibiting and restraining Respondents no. 2 to 4 from discontinuing availability of Whatsapp’s service to all those users who do not respond to the so-called consent being sought by Whatsapp for changing the privacy policy and the Whatsapp service must continue for all such users till the adjudication of the present writ petition;

(H) Issue a writ of prohibition or any other writ or direction in the nature thereof prohibiting and restraining Respondents no. 2 to 4 from utilizing the works transmitted through the messaging service for any purpose including taking a presumptive licence for all the works and a further order restraining them from utilizing, reproducing and/or exploiting the said works in any manner whatsoever;

In June 2016, Supreme Court has refused to entertain a PIL seeking a ban on instant messaging application Whatsapp and asked petitioner and RTI activist Sudhir Yadav to approach the Department of Telecom, Information Technology ministry or TDSAT with his grievances.