The Supreme Court on February 1 directed WhatsApp to widely publicise its undertaking given to the Centre that it will not limit functionality for users not agreeing to its 2021 privacy policy but will continue to remind users about the update, and “maintain this approach” till the proposed data protection law comes into effect.
In a letter written to the Ministry of Electronics and Information Technology on May 22, 2021, WhatsApp had assured the government that the privacy of users remains the highest priority and that it will not limit the functionality.
The apex court was hearing a plea filed by two students -- Karmanya Singh Sareen and Shreya Sethi -- challenging the contract entered into between WhatsApp and its parent Facebook to provide access to calls, photographs, texts, videos and documents shared by users, saying it is a violation of their privacy and free speech.
Observing that the matter needs consideration, a five-judge Constitution bench headed by Justice K M Joseph asked the mobile messaging app to give advertisements in five newspapers to publicise its 2021 undertaking given to the government.
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"We record the stand taken in the letter dated May 22, 2021 (to the government) and we record the submission of the senior counsel for WhatsApp that they will abide by the terms of the letter till next date of hearing.
"We further direct that WhatsApp will give publicity to this aspect for the benefit of the customers of WhatsApp in five national newspapers on two occasions. Advertisements shall be full page and will necessarily incorporate the stand taken in the letter," said the bench also comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C T Ravikumar while posting the matter for hearing on April 11.
As the hearing commenced, Attorney General R Venkataramani, appearing for the Centre, said Parliament may also look into the WhatsApp matter.
"For any reason, if the Court might orient the Parliamentary debate or the public consultation, it may not ....that is one concern," he said.
The bench clarified that it was not looking into the Legislature’s functioning.
Solicitor General Tushar Mehta said a data protection bill will be introduced in the second half of Parliament's Budget session.
"Parliament session has started. It's in two phases. The second session is likely to start from March 13. Subject to the Bill getting approval from Cabinet it is intended to be presented in the second half of this session, i.e., March 13-April 6," he said.
Senior advocate Kapil Sibal, appearing for the messaging app, said the court should await the passage of the bill by Parliament.
"It is not just ordinary legislation. It has ramifications on investment, freedom of speech, privacy etc...It will impact every other intermediary. If it is between now and July, what is the harm. It took 6 years for the European Union(EU) to pass the Bill.
Senior advocate Arvind Datar, appearing for Meta, the company which owns Facebook, said the petitioners have no ground to challenge the policy.
"There are regulations, guidelines in place. There is not a single complaint and they are challenging everything in air," he added.
Defending the privacy policy of the messaging app, Sibal submitted there are 600 million subscribers in India.
He said no personal messages on the messaging app can ever be read by any person including WhatsApp and it's encrypted end to end.
"There are two global regimes. First is the regime followed in USA and other countries. While the other is European regime. That's a matter that law will decide. I want to disabuse your lordships of the impression that whatever we say by way of message is known to a third person. Not even by WhatsApp.
"What is the information we have? Your name, phone number, that’s all. That is the information we have. Basically, it is the phone number. But nothing to do with content, nothing to do with personal data," Sibal said adding that the data is not even stored by us, it is stored in individual phone.
He said since 2009 there has been no complaint from users in India that any personal information has been revealed to anybody or is known to anybody.
"WhatsApp does not process personal sensitive data. That is our policy," Sibal added.
Senior advocate K V Vishwanathan, appearing for the Internet Freedom Foundation, said the 2021 privacy policy which collects large data doesn't provide opt out policy.
"Let them give us the opt out policy. They want this unregulated situation to continue," he said.
Referring to the stand taken by WhatsApp, senior advocate Shyam Divan, appearing for the petitioners, said there is a dramatic difference between the policy being applied in certain jurisdictions in other countries and in India.
He submitted that the stand taken by WhatsApp with respect to subscribers in Europe is different from the ones in India.
The apex court on Tuesday had said it will examine whether it should consider now the plea challenging WhatsApp's policy to share users' data with parent company Facebook and others or will it be a mere "academic" exercise, after the Centre submitted that it was going to bring a data protection bill in the Budget Session.
It had observed that there was no harm in waiting for the Bill to be tabled and "heavens are not going to fall in the meanwhile".