SC’s Privacy Judgment Casts Its Shadow Over WhatsApp’s Data Sharing Policy Case [Read Order]

The WhatsApp Case, being heard by the five-Judge Constitution bench of the Supreme Court, took an interesting turn today, with the Court and the counsel examining the impact of the recent landmark privacy judgment of the Court on the proceedings.

At the outset, Madhavi Divan, counsel for the appellant, referred to the paragraphs in the privacy judgment, which have relevance in the case. Thereafter, Additional Solicitor General, Tushar Mehta, informed the bench about the constitution of the committee of experts, headed by former Judge of the Supreme Court, Justice B.N.Srikrishna, to deliberate on the data protection framework for India.  Mehta submitted that after the committee submits its report, a law would be enacted regulating the data protection.

Senior counsel, K.V.Vishwanathan, appearing for the impleaded party, referred to the paragraphs dealing with informational privacy in the privacy judgment which expressly noticed the concerns raised by the petitioner in this case.  Specifically, he referred to paragraph 174 of the privacy judgment, which dealt with metadata, and the protection against non-State actors.  He emphasised the need to lay down guidelines, using the Visakha precedent, till Parliament enacted a law for data protection.

Justice A.K.Sikri intervened to say that it should be left to experts to deal with it, rather than the Court taking up the task of laying down the guidelines for data protection.

When the question of WhatsApp passing on its data to Facebook came up,  senior counsel for WhasApp, Kapil Sibal asked the petitioners to specify what is being passed on.

Madhavi Divan, while explaining what is being passed on, asked the bench to keep the matter pending, as WhatsApp’s policy is unconscionable, as it tells its users, “Take it, or leave it”.

When Kapil  Sibal justified sharing of data by WhatsApp, pointing to similar sharing by Google, the bench took objection to it, saying he could not justify a wrong, merely because others are guilty of the same thing.

Facebook’s counsel, Arvind Datar referred to Paragraph 136 in the Privacy judgment, to suggest that legislative intervention in data protection is required, in terms of the privacy judgment, as the issue is highly complex.

Both Vishwanathan and Madhavi Divan emphasised the need for ad interim injunction restraining the respondents from sharing the data with the third parties.

As both Kapil Sibal and Arvind Datar offered to file affidavits to allay the concerns of the petitioners, the bench gave them four weeks for the purpose, and assured them that if the affidavits do not require any kind of intervention by the Court, it may not pass any interim order.

The Constitution bench is headed by the Chief Justice of India, Dipak Misra, includes Justices A.K.Sikri, Amitava Roy, A.M.Khanwilkar and Mohan M.Shantanagoudar.

The case will be listed for hearing at 3 p.m. on November 20.