Supreme Court Asks Petitioner Challenging WhatsApp Business's Privacy Policy To Move Delhi High Court

"We are on the privacy policy of WhatsApp Business accounts. WhatsApp has two kinds of subscribers- the general category and WhatsApp Business. The privacy concerns regarding the latter are critical! There is a lot of financial information of business enterprises there", it was advanced on behalf of the advocate for the petitioner-organisation.

"We are told that there is a similar matter before the Delhi High Court...", observed CJ S. A. Bobde.

"WhatsApp Business is not dealt with by those petitions. If you could allow me to file a separate plea?", ventured the advocate for the petitioner.

"We will only say withdrawn with liberty to approach the High Court. You can file ans independent plea or do whatever you want. You may approach the High Court in any manner you want", said the CJ.

WhatsApp updated its privacy policy on January 4, 2021 and made it compulsory for its users to accept its terms and conditions, failing which the accounts and services would be terminated after February 8, 2021 for the respective user. Later, following public outcry, WhatsApp informed that it was pushing back the new privacy policy and assured users that no accounts will be suspended on February 8.

Observing that WhatsApp is a 'private app' and that the users voluntarily use the app even though they have the option to not use it, the Delhi High Court on January 18 said that it will only issue notice in the petition once it understands the concern of the petitioner against the application and its contentious updated privacy policy. The single judge bench of Justice Sanjeev Sachdeva of the Delhi High Court asked the petitioner, Adv Chaitanya Rohilla who has challenged Whatsapp's updated privacy policy, "What is your grievance? It's a private app, don't join it."

Justice Sachdeva further said to the petitioner, "I doubt that you have read any of the policies of any of the apps, you'll be shocked as to what all you consent to, and it is all voluntary, if you don't want, don't use the app. I am yet to understand your concern. Until I understand it, I will not issue notice on your plea."

Asking the petitioner to elaborate its concerns against the app, the judge asked, "What is the data you feel is going to be compromised?"

Adv. Manohar Lal, appearing for Rohilla, replied, "Whatsapp shares information globally. Everything they gather from us is shared." The court then said, "Mr. Lal, there are two issues. One is that your personal messages are looked into and shared. Two is that your browsing history is shared," and asked him to explain what his issue was.

When the petitioner replied that "they analyze browsing history and form an opinion about the user and share that", the Court said, "All apps do that." In reply to which, Rohilla's counsel said that while in Europe and the US, WhatsApp is giving an option to accept or reject the updated policy, here in India, no such option is given.

The court reiterated, "You have an option, don't use the app," and asked what the stand of the Information & Broadcasting Ministry was on the matter, to which ASG Chetan Sharma appearing for the I & B Ministry said that the issue needs analysing.

WhatsApp and Facebook were represented by Sr. Adv. Kapil Sibal and Mukul Rohatgi respectively. While WhatsApp challenged the very maintainability of the petition stating that users had the option to use the business app or not, Facebook submitted that, "The app is completely safe to use. Let the petitioner be reassured that all chats between friends, relatives, etc will be encrypted and safe."

On the petitioner's statement that there needs to be a law regulating these apps, Sr. Adv. Rohatgi said, "The High Court is not going to make laws, if you want new laws, go to the Parliament."

Stating that the court could not in any case hear the matter today, Justice Sachdeva directed for the case to be listed on Jan 25.

The petition filed by Advocate Chaitanya Rohilla, states that the updated Policy gives the Company virtually a 360-degree profile into a person's online activity. "This level of insight into a person's private and personal activities is done without any government oversight at present or regulatory supervision. Moreover, in the absence of a data protection authority, it leaves the users with a company's own assurances and privacy policies," the plea states.

Thus, he has urged the High Court to issue an injunction order, restraining WhatsApp from enforcing the updated privacy policy, with immediate effect. He has also sought guidelines/ directions to ensure that any change in Privacy Policy by WhatsApp is carried out strictly in accordance with the Fundamental Rights.

Inter alia, he has sought a direction upon the Central Government to exercise of its powers under Section 79 (2) (c) read with Section 87 (2) (zg) of the Information Technology Act and ensure that WhatsApp does not share any data of its users with any third party or Facebook and its companies for any purpose whatsoever.