WhatsApp v Right to Privacy: Supreme Court directs WhatsApp to publicize its May 2021 undertaking; to hear petition in April 2023

Supreme Court took note of an undertaking given to the Ministry of Electronics and Information Technology, Government of India, on 22-05-2021, WhatsApp had given the undertaking its users in India who have not yet accepted the 2021 privacy policy would not face any disruptions in using the application. It also directed WhatsApp to abide by the undertaking till next date of hearing.

Supreme Court: In a batch of petitions, the Constitution bench of K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar J.J., heard a matter pertaining to privacy policy of WhatsApp.

The bench on 01-02-2023 directed WhatsApp to widely publicise its stand that its users in India do not have to accept its 2021 privacy policy in order to use the mobile application. It further stated that WhatsApp’s functionality would remain unaffected till the Data Protection bill comes into existence.

The issue arose in May 2021 when WhatsApp revised its privacy policy applicable to Indian users which allegedly undermined Article 21 of the Constitution. The policy controlled the access to the most personal information of the users and WhatsApp was allowed to use the same in every fashion, giving the Indian users stark choice to either exit the ubiquitous WhatsApp infrastructure that facilitates daily life or to surrender personal information to a group of private companies whose avowed object was to monetize the same without any supervision.

The petitioner alleged that with the introduction of payment services on WhatsApp mobile application, it had increased the range of data it collects to include sensitive financial information. WhatsApp imposed new privacy policy on its users which enables it to share the personal and financial information with third parties, who provide no services to WhatsApp users, and who may further share the information to whom they please. The among of data, WhatsApp collects from its users, do not even need this information to offer its services.

It was further alleged that the European users of WhatsApp have the option to deny WhatsApp the use of their personal and financial information, however, the same courtesy is not extended to the Indian users.

The petitioner vehemently submitted “WhatsApp conjures the image of an unlicensed lorry driver, who, having loaded up his truck with a hazardous substance has now begun to careen recklessly down a highway, eager to beat all other traffic. Already, the truck has begun to spill, hurting those that it passes, heading inexorably towards a collision which could destroy the lives of many. While it picks up speed, policemen remain silent, or worse, look away.”

The petitioner posed various question of law for consideration:

  • Whether WhatsApp users in India, have a fundamental right to privacy in relation to their personal data (including metadata), which is collected by them?
  • Whether a WhatsApp user is entitled to protect its personal data (including metadata) by requiring WhatsApp to not collect and share this data with third parties including Facebook / Facebook group of companies?
  • Whether in relation to privacy of personal data (including metadata) of users, WhatsApp and Facebook are obliged to maintain uniform privacy-related standards and procedures in respect of users within and outside India?
  • Issues involving public remedies and Constitutional interpretation: judicial review of acts of persons who are not “State” under Article 12?
  • Whether the judgement of Constitution bench case in Kaushal Kishor v. State of Uttar Pradesh, 2023 SCC OnLine SC 6 in conflict with previous decisions of five judges in P.D. Shamdasani v. Central Bank of India Ltd., 1952 SCR 391 and Vidya Verma v. Dr. Shiv Narain Verma, (1955) 2 SCR 983?
  • If not, then in view of the observation in Kaushal Kishor (Supra) that fundamental rights under Articles 19 and 21 may be applied horizontally “on a case-to-case basis” and “considering the nature of the right violated and the extent of obligation on the part of the violator”, what conditions would need to exist and what tests would be applied to undertake judicial review of acts by a person who is not “State”?
  • Under what circumstances, if any, would private contracts such as “Terms of Service” between the Respondents and members of the public be susceptible to judicial review for violation of fundamental rights?
  • Issues involving private remedies and Constitutional interpretation, i.e. interaction between the Constitution and evolution of common law remedies
  • Is there a duty placed on courts, whilst evolving principles of common law, to do so in a manner that furthers and betters the protection of fundamental rights?
  • If so, should the principle of absolute liability, or in the alternate, strict liability, be evolved to apply to public leaks of private data?

The Bench took note of an undertaking given to the Ministry of Electronics and Information Technology, Government of India, on 22-05-2021, WhatsApp had given the undertaking its users in India who have not yet accepted the 2021 privacy policy would not face any disruptions in using the application. It also directed WhatsApp to abide by the undertaking till next date of hearing. The Supreme Court as an interim direction directed WhatsApp to give publicity in 5 national newspapers on two occasions with full-page advertisement which should necessarily contain the undertaking.

The matter is listed for further hearing on 11-04-2023.

[Karmanya Singh Sareen v. Union of India, SLP(C) 804 of 2017, matter heard on 01-02-2023]

Advocates who appeared in this case:

Advocate Ashim Sood, Advocate Senu Nizar, Advocate Ekansh Gupta, Advocate Velpula Auditya, Advocate Rhythm Buaria, Advocate Kuber Bajaj Advocate Reaa Mehta, Petitioner in Person Karmanya Singh Sareen, Advocate on Record Utkarsh Sharma, Advocate on Record Gaurav Sharma, Advocate Pirabsh, Advocate Paranjay Tripathi, Advocate on Record T. V. S. Raghavendra Sreyas, Attorney General for India R Venkataramani, Solicitor General Tushar Mehta, Additional Solicitor General K.M. Nataraj, Additional Solicitor General Madhavi Diwan, Advocate on Record Gurmeet Singh Makker, Advocate Rajat Nair, Advocate Kanu Agarwal,Advocate Swarupama Chaturvedi, Advocate Sansriti Pathak, Advocate Bajaji Srinivasan, Advocate Udai Khanna, AdvocateAnirudh Bhat, Advocate Nakul Chengappa K.K., Advocate on Record Sanjay Kapur, Advocate Megha Karnwal, Advocate Surya Prakash, Advocate Arjun Bhatia, Advocate Akshata Joshi, Advocate Astha Gumber, Senior Advocate Raju Ramachandran, Advocate Mr. Manu Kulkarni, Advocate Saransh Jain, Advocate Shloka Narayanan, Advocate Ankit Agarwal, Advocate Abhishek Kumar, Advocate Sneha Dey, Advocate on Record Balaji Srinivasan, Advocate Lakshmi Rao, Advocate Gauri Pasricha, Advocate Devamshu Behl, Advocate Shiva Krishnamurti, Advocate Aakriti Priya, Advocate Rohan Dewan, Advocate on Record M. P. Devanath, Senior Advocate. Sajan Poovayya, Advocate Mr. Neel Mason, Advocate on Record Senthil Jagadeesan, Senior Advocate V Giri, Advocate Abhinav Sharma, Advocate Ashutosh Ranjan, Advocate on Record Alok Tripathi, Senior Advocate Nikhil Nayar, Advocate Susmit Pushkar, Advocate Anchit Oswal, Advocate Naina Agrawal, Advocate on Record Khaitan & Co., Senior Advocate Mukul Rohatgi, Advocate Teja Karia, Advocate Shashank Mishra, Advocate Akshi Rastogi, Advocate on Record S.S. Shroff, Senior Advocate Arvind Datar,Advocate Shantanu Mathur, Advocate Thijesh Rajendran, Advocate P. Kaushik Senior Advocate Mr. Kapil Sibal, Senior Advocate Vivek Reddy, Advocate Tejas Karia, Advocate. Shashank MishraAdvocate Akshi Rastogi, Advocate Aparajita, Advocate K. John, Advocate Mr. Varun Pthak, Advocate A. Rana, Advocate Mitali D., Advocate Vani Kaushik,Senior Advocate Siddharth Luthra,Advocate S. Jain, Advocate Vibhuti Vasisth, Advocate Soma Banyal, Senior Advocate. Shyam Divan

*Simran Singh, Editorial Assistant has summated the report.

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