‘Whatsapp’ not obligated to protect personal data; TRAI directed to create statutory framework for internet messaging services

Delhi High Court: This case is a public interest litigation that prays for a writ of mandamus and prohibition against ‘Whatsapp’ i.e. an Internet messaging service, restraining it from sharing data of users with its the parent company i.e. Facebook. The facts in issue are that up to August 2016, ‘Whatsapp’ guaranteed a private policy of total safety of data/personal details. But, the private policy underwent a change after the acquisition of ‘Whatsapp’ by Facebook in August 2016. The change being that the account information of the users of ‘Whatsapp’ would be shared with Facebook and its group companies for purposes of commercial marketing and advertising.

The petitioners contended that the current private policy of 2016 has been changed without the consent of the users. Moreover, the policy would lead to a serious breach in privacy thereby violating Article 21 of the Constitution. The affidavit filed by the respondents culled out the new private policy of ‘Whatspp’ saying (a) No message, photo or account information of the user will be shared on facebook; (b) Messages will be encrypted end to end that cannot be accessed by ‘Whatsapp’ or third parties; (c) No baner ads will be allowed; (d) There will be an option for the user to deny sharing the account information with Facebook.

The Division Bench of Rohini, C.J. and Sangita Dhingra, J dismissed the petition on the count that Whatsapp is free private software that can be downloaded voluntarily by users under a private contract. The Court additionally relied on the following policies declared by ‘Whatsapp’ in 2012:

(1) Notice to international users: people using the ‘Whatsapp’ service outside the United States of America would willfully transfer their personal information.

(2) In the event of sale:  in the event of a merger/sale we may not be able to control how your personal information is treated.

(3) Changes in private policy: there will be a periodic revision of the policies and continued usage would constitute your agreement to the policies in force.

The Court however passed directions to the effect that (a) data of the users opting for deletion of their ‘Whatsapp’ account before 25/9/2016 should not be shared with Facebook; (b) data of users who choose to stay with ‘Whatsapp’ after 25/9/2016 will not be divulged on Facebook; (c) TRAI shall consider regulating functioning of internet messages services like ‘Whatsapp’ and bring it under a statutory framework. [Karmanya Singh v. Union of India, 2016 SCC OnLine Del 5334, decided on 23-09-2016]

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