Data Protection Bill Being Prepared, Says Centre; Supreme Court Adjourns Case Against WhatsApp Privacy Policy To Jan 2023

Considering the Centre's statement that a bill relating to personal data protection is being prepared, the Supreme Court on Thursday adjourned to January 2023 the hearing of petitions challenging messaging platform WhatsApp's privacy policy.

A Constitution Bench bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar was hearing the petitions which were filed challenging the 2016 privacy policy of WhatsApp. The case was referred to the Constitution Bench in 2017.

When the matter was taken, the bench asked why the matter has been referred. Senior Advocate Shyam Divan, appearing for the petitioners, replied that no questions were formulated for reference. He said that the petitions challenge the privacy policy of WhatsApp, which has been subsequently acquired by Facebook(now Meta).

"There is a cleavage in the WhatsApp privacy policy which is applied to Europeans and the one applied here. The standard used in EU is much higher and privacy enjoyed by them is of higher order. Indian users ought not be disadvantaged qua users in the global jurisdiction because privacy now is a fundamental right and has global implication. It is a global human right. In absence of local laws, global corporations have to adopt a golden standard", Divan submitted.

Solicitor General of India Tushar Mehta informed the bench that the Data Protection Bill introduced in the Parliament has been withdrawn and a comprehensive bill is underway.

"It is the stand of the Government that Indian users cannot be discriminated against the other users of WhatsApp. Government of India is alive to the situation and a bill is underway", the SG submitted requesting the bench to hear the matter after the bill has been put in place.

"If the Government of India is keen on having a legislation, it could have put it in place", Justice Joseph remarked.

Senior Advocate Kapil Sibal, appearing for Meta-WhatsApp, submitted that the litigating should not be made WhatsApp-centric as privacy applies to all.

"Indian WhatsApp users are the highest in the world. So, the advantage and disadvantage qua the largest group of users is perceived here", Justice Joseph said.

"The issue is not whether it is largest user or not. It is on the law framed by the Parliament in the respective country", Sibal replied.

The bench said that it will post the matter to January 17 to see whether a new law on data protection will be brought during the Winter Session of the Parliament. It said that the case will be taken up for final hearing in January.

The bench also allowed the request made by Advocate Vrinda Bhandari to allow an intervention by the Internet Freedom Foundation.

The petitions in the Supreme Court are filed against the September 2016 judgment of the Delhi High Court which refused to interfere with the WhatsApp's privacy policy. In 2021, WhatsApp had updated its privacy policy, which came under huge public criticism. Following that, WhatsApp put its new policy on hold.

Case : Karmanya Singh Sareen and another versus Union of India and others | SLP(c) 804/2017

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