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The Supreme Court Bench headed by Chief Justice SA Bobde and comprising Justices AS Bopanna and V Ramasubramanian has issued a notice “returnable in four weeks” on an application (I.A No. 6140 of 2021) seeking to restrain WhatsApp from implementing its new privacy policy in India, and to direct it to apply the privacy policy which is made applicable to users in European region.
While issuing notice to the Union Ministry of Electronics and Information Technology, media giants WhatsApp and Facebook, CJI Bobde remarked, “People have grave concerns about their privacy. You may be a 2 trillion 3 trillion company. But the privacy of people is more important than your money!”
CJI : You must understand Mr. Datar, people have grave concerns about their privacy. You may be 2 trillion 3 trillion company. But the privacy of people are more important than your money.#WhatsApp #Facebook
— Live Law (@LiveLawIndia) February 15, 2021
LiveLaw reported that the Bench said it will have to consider if a similar petition, pending before the Delhi High Court, is maintainable when a Constitution Bench of the Supreme Court is already seized with the matter.
Background
The present application was filed in the matter, Karmanya Singh Sareen vs Union of India (SLP Civ. No. 804 of 2017) raising privacy concerns post the merger of Facebook and WhatsApp. In 2017, the top court Bench headed by Chief Justice of India J S Khehar had said that a Constitution Bench will be constituted for hearing of protection of Privacy issue in WhatsApp.
According to LiveLaw, Senior Counsels Kapil Sibal (appearing for WhatsApp) and Arvind Datar (appearing for Facebook) argued before the Bench on February 15 that the petition has become infructuous as it is challenging the 2016 policy. They argued that the 2020 policy cannot be challenged by merely filing an intervention application and instead, a substantive petition must be drawn.
The Senior Advocates, including Mukul Rohtagi (also appearing for WhatsApp), who agreed with the above-mentioned stance, argued that that the Delhi High Court has already issued notice on a petition challenging the WhatsApp policy and urged the Apex Court to dismiss this application.
On February 3, as reported by LiveLaw, the Delhi High Court Chief Justice DN Patel and Justice Jyoti Singh had sought responses of the Centre and WhatsApp on the petition challenging the new policy that does not provide the users any option to protect their personal data by opting out of their policy of sharing data with other Facebook companies.
Submissions
Senior Advocate Shyam Divan (appearing for the applicant) told the Supreme Court that WhatsApp’s policy is discriminatory as it differentiates between its Indian users and its users based in Europe, tweeted LiveLaw.
He said, “One set of privacy standards apply to Europe and a different set of standards apply to Indians. This happens when the Personal Data Protection Bill is pending… There is a huge differentiation between Europeans and Indians”.
He also submitted that the application contends that WhatsApp shall not use lower privacy standards for Indian users when compared to Europeans and till Personal Data Protection law comes into force, WhatsApp should not be allowed to share data with Facebook or any third party. He also sought a direction to the Ministry to direct WhatsApp to not implement the new privacy policy till the concerns are addressed.
Responding to this, Sibal argued that no differential treatment is being meted out to Indian users. He submitted that the same policy is applicable across the world and a separate policy has been framed only for Europe, given their data privacy laws. According to LiveLaw, he said, “My learned friend (Shyam Divan) said WhatsApp is differentiating between India and Europe. The fact is that this policy is applicable to the rest of the world except Europe. Same policy is the US, Australia etc. In Europe it is different because they have a special law”.
Sibal : My learned friend said WhatsApp is differentiating between India and Europe. The fact is that this policy is applicable to the rest of the world except Europe. Same policy is US, Australia etc. In Europe it is different because they have a special law.#WhatsApp
— Live Law (@LiveLawIndia) February 15, 2021
Arvind Datar, for Facebook, then submitted that Europe follows the General Data Protection Regulations which is applicable to about 27 countries and that is why there is a special law in place. “They keep on saying we are sharing data, sharing data. That is not true. When we are complying with Central Ministry guidelines, how can Article 32 petition lie?”, he said.
But the CJI seemed to have been impressed by the applicant’s lawyer Shyam Divan’s submissions and highlighted the privacy concern of people. He said, “You must understand Mr. Datar, people have grave concerns about their privacy. You may be a 2 trillion 3 trillion company. But the privacy of people is more important than your money. We will tell you what we read in the media. People think that when A messages B, the whole thing that A messaged B is disclosed to Facebook”, tweeted LiveLaw.
Arvind Datar assured the court that WhatsApp’s messages are encrypted end to end and that they are willing to file an affidavit saying that no personal information is being stored or shared. The Bench then asked them to file their reply within the next four weeks.
The matter will now be taken up tentatively after four weeks.
The order may be read here:
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