Supreme Court issues notice to WhatsApp over privacy policy update

The Supreme Court has issued notices to WhatsApp, Facebook and the central government over the controversial privacy policy update announced by the messaging service earlier this year.

A three-judge bench, headed by Chief Justice of India SA Bobde, said in a hearing on Tuesday that people are concerned about their privacy, and believe that Facebook can access their conversations.

“You must understand Mr. Datar, people have grave concerns about their privacy,” CJI Bobde told senior advocate Arvind Datar, who appeared for WhatsApp. “You may be [a] $2 trillion-$3 trillion company. But the privacy of people is more important than your money… People think that when A messages B [on WhatsApp], the whole thing that A messaged B is disclosed to Facebook."

The hearing follows the submission of an updated intervention statement -- originally filed in 2016 by Karmanya Singh Sareen and Shreya Sethi in 2016 -- that sought to restrain WhatsApp from implementing the January 4 privacy policy update, which required users to accept sharing of certain chat metadata with Facebook companies. The latest update, the statement said, threatens the right to privacy for crores of Indians using WhatsApp. 

Senior advocate Shyam Divan, speaking on behalf of the applicants, claimed that the new data sharing policy was announced even as the country’s Personal Data Protection Bill is pending. He said that European countries, which are governed by GDPR data protection laws, have been given a much more stringent policy standard.

WhatsApp counsel Datar argued that messages on the platform remain end-to-end encrypted and that similar standards were offered to other countries that are not governed by GDPR. 

Opposition advocate Divan, on the other hand, sought a notice and urged the court to make sure that lower standards of privacy were not applied to Indians. 

“There should be no data sharing between WhatsApp and Facebook or other third parties until the PDP law is implemented and the Ministry of Electronics and Information Technology should be directed to hold the implementation of privacy policy update,” he said, before getting the notice from the court. 

The notice directs the Facebook-owned company to explain its stance on the matter by filing a counter-affidavit within four weeks. A notice was also issued to MeitY, which has already written to WhatsApp, demanding a rollback of the new policy and reconsideration of its approach to information privacy, freedom of choice and data security.

Read: WhatsApp privacy policy update: here’s what’s up

To recall, WhatsApp had introduced the January privacy policy update in an accept-or-leave manner, which triggered major data privacy concerns and forced many users to switch to alternatives Signal and Telegram. 

WhatsApp, in response, issued statements saying that private messages will remain encrypted after the change and delayed its implementation until May 15 -- a deadline that still stands.