WhatsApp Privacy Policy to Be Examined by Supreme Court

Online messaging service WhatsApp on Tuesday sought to assure the Supreme Court that it has never shared the contents of the messages between its users with third parties even as the top court said that it could not leave 160 million users "trapped in a corridor of charity".

The five judge constitution bench headed by Justice Dipak Misra indicated that it would examine the 2016 privacy policy of the online messaging app on the reopening of the court after its summer vacations.

Besides Justice Misra, the bench includes Justice A.K. Sikri, Justice Amitava Roy, Justice A.M. Khanwilkar and Justice Mohan M. Shantanagoudar.

The court said that it would examine the new privacy policy, which WhatsApp had brought in 2016, after it was acquired by the social networking site Facebook, on the grounds whether it was contrary to public policy and whether it was required to be put to constitutional controls.

However, this would happen only if the court comes to conclusion it required judicial interference, said the bench in course of the hearing of a plea by petitioners Karmanya Singh Sareen and Shreya Sethi who have challenged the Delhi High Court's September 23, 2016 order allowing WhatsApp to roll out its new privacy policy but stopping it from sharing the data of its users collected up to September 25, 2016, with Facebook or any other related company.

Tuesday was the second day of the hearing and further hearing would take place after top court reopens after summer vacations. On Monday, the court had asked WhatsApp why it changed its policy of non-sharing of data of users after its acquisition by Facebook ito permit sharing of the attributes of its users.

Resuming his arguments on the maintainability of the petitions challenging the Delhi High court verdict, senior counsel K.K. Venugopal, appearing for Facebook, said: "We can file an affidavit stating that not a single piece of information has been shared with anybody. Even I cannot access the information if I want to. There is no element of human intervention in the process. Machines take care of this."

He said that any fundamental right - be it of communication or choice of communication - could only be invoked against the state and not against a private entity like WhatsApp, which was not discharging public functions. He argued that petitioners challenging its 2016 new privacy policy will have to first approach the regulatory authorities - TRAI.

He said that regulations framed under the Information Technology Act in 2009 and 2011 covered WhatsApp - a position contested by the petitioners who are contending that these regulations have been outpaced by the technological advancements.

Reiterating that it was in no position to go into the contends of the messages exchanged between its users as they were in encrypted form, senior counsel Siddharth Luthra, appearing for WhatsApp, told the bench that it was not generating meta data and all that was being shared was contact details, profile photo and status of the users of the App.

Lawyer Madhvi Divan, appearing for the petitioners, said that WhatsApp was using public resource like spectrum and was performing public functions.

Comparing it with telephone services, Divan said while one was paying for availing telephone services, WhatsApp was free but describing its operation as "economic espionage in the name of free service", urged the bench to look at their business model.