Plea in SC seeking direction to WhatsApp to roll back its new privacy policy

A plea has been filed in the Supreme Court, seeking a direction to instant messaging platform WhatsApp to roll back its recently-launched new privacy policy on the ground that it is violative of laws and can impact the country's security.

The plea filed by the Confederation of All India Traders has also sought a direction to the Centre to intervene in the matter and frame guidelines to govern large technology-based companies such as WhatsApp Inc., Facebook Inc. and Facebook India Online Services Private Limited.

The petition filed through advocate Vivek Narayan Sharma says the PIL was necessitated due to the failure of the Centre in carrying out its constitutional duty and responsibility to protect the rights to privacy and freedom of speech and expression of the citizens of India.

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"The respondent no.1 -- Union of India -- has granted permission to respondent nos 2 to 4 to run the WhatsApp application in India, but has failed to play the role of a guardian to protect the fundamental rights of citizens in as much as WhatsApp, which is rendering essential public services by enabling citizens to communicate, has recently imposed unconstitutional privacy conditions which are not only violative of the law but can impact the national security of the country," it says.

The plea says the Centre has failed to impose necessary and restrictive conditions in the instant case, while the European Union's (EU) Antitrust Authority imposed serious restrictions on the proposed policy of WhatsApp and a fine of 110 million euros on the instant messaging platform in 2017.  

"...on January 4, 2021, WhatsApp introduced its new privacy policy through which it scrapped its 'opt-out policy' and from now on, users will have to compulsorily consent to share their data with Facebook and its group companies for using the platform. The new policy will come into effect from February 8, 2021," it says.

The petitioner said the updated privacy policy of WhatsApp would adversely impact the citizens' fundamental right to privacy and is also fundamentally opposed to their representation.

"Today, high government officials like ministers and members of Parliament, judges, senior bureaucrats, defence personnel, crores of traders and well-known businessmen and so on use WhatsApp for sharing confidential and personal information and the compromise in the privacy policy would result in serious repercussions even for the national security of India," the plea says.

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It says that aggrieved by the impugned policy of WhatsApp and its impact thereof, the petitioner had written to the Centre, asking it to intervene in the matter and vide its powers provided under the applicable law, direct WhatsApp to roll back it policy or alternatively, ask the firm to cease its operations in India.

The plea says users share confidential information on the platform on the assurance that their private and personal conversations, along with their confidential data and information, will neither be accessed by any other person (including the service provider itself) nor would such data or information be shared or exploited or utilised by anyone in any manner whatsoever.

"Thus, the technology giants who deal with such data must have a fiduciary duty to ensure that the information they so possess and collect from citizens and businesses must be safe and not used for their own commercial gains without the consent of the users. It is also the responsibility of the State to guarantee and ensure the protection of the personal and private data and information of the citizens," the plea says.

The petitioner further submitted that such arbitrary policies imposed by these "so-called" technology giants need to be immediately checked as the citizens' personal data is being collected by a foreign entity and transferred outside the country.

"It is not only harmful to the integrity of citizens but is also extremely dangerous to the security of the country. It is also the responsibility of the State to guarantee and ensure the protection of the personal and private data and information of these millions of citizens, when they use such modes of communications to engage in conversations and exchange private and confidential data and information," the plea says.

It points out that in 2016, Germany, the United Kingdom and the entire EU had prohibited a similar action of Facebook, which was asked to delete all data concerning WhatsApp users.

The plea says WhatsApp, an internet application providing instant-messaging, voice-calling and video-calling services, is growing substantially with over 200 crore users worldwide, including 40 crore in India.

The plea sought a direction to the Centre to prohibit WhatsApp, Facebook and Facebook India from sharing the details and data of the subscribers and users. 

It also sought a direction to the Centre for action to regulate the functioning of WhatsApp, Facebook and other internet-based messaging services.