‘You can choose to walk out of WhatsApp if you want to protect your privacy’, the Supreme Court on Monday told two law students who had challenged a Delhi High Court order upholding the company’s 2016 policy to share user information with Facebook as a violation of citizen privacy.
"What is disturbing here is you want to continue using this private service and at the same time want to protect your privacy... You can choose not avail of it [WhatsApp], you walk out of it,” Chief Justice of India J.S. Khehar said.
Senior advocate Harish Salve said WhatsApp, an instant messaging and call service with 155 million users, has become a "public utility service" like telephone calls.
"No, no. You pay for your telephone calls. You get your privacy... Here [WhatsApp] you don't pay. This is a private service," Chief Justice Khehar, who is heading a Bench also comprising Justice D.Y. Chandrachud, said.
But countering the court's logic, Mr. Salve said even telephone calls have become free.
"The Government of India should protect my rights under Article 19 [freedom of speech and expression]. The Telecom Regulatory of India says that interception of calls without government's order is an illegality... Here, TRAI is doing nothing," Mr. Salve submitted.
The court finally agreed to hear the challenge at length during the summer holidays in mid-May, along with certain other important constitutional cases.
The students had argued that the new policy would result in changing the most valuable feature of WhatsApp — privacy of details and data of its users. They had demanded an option of “do not share” for users who did not wish to share information with Facebook.
Seeks A-G Mukul Rohatgi’s help
Chief Justice Khehar said Mr. Salve should himself argue the case and sought the assistance of Attorney-General Mukul Rohatgi.
The High Court had late last year upheld WhatsApp new privacy policy on sharing of users’ information with Facebook effective from September 25 while directing the instant messaging app to “delete completely” from its server information/ data/ details of all users who choose to delete their account.
A High Court Bench headed by Chief Justice G. Rohini had also directed that “so far as users who opt to remain on WhatsApp are concerned, their existing information/ data/ details up to September 25, 2016, shall not be shared with Facebook or any group companies”.
Declining to tell WhatsApp to give an option of “do not share’’ to its users, the Bench said such users can any time delete their accounts.
Considering certain clauses of WhatsApp on sharing information with third party in case of a merger and periodic revision of privacy policy, which were accessible to all online, the Bench had observed: “It appears to us that it is not open to the users now to contend that WhatsApp shall be compelled to continue the same terms of services [which were in place at the time of its launch in 2010].”
It, however, directed the Centre and the TRAI to “consider issues regarding functions of Internet Messaging Applications like WhatsApp and take an appropriate decision at the earliest as to whether it is feasible to bring the same under a statutory regulatory framework”.
