WhatsApp User Data Case: Supreme Court Asks Reasons for Privacy Policy Change

The Supreme Court on Monday asked online messaging service WhatsApp why it changed its policy of non-sharing of data of its users after its acquisition by the social networking site Facebook in 2016 to permit sharing of the attributes of its users.

"You were not sharing it in 2012, 2013, 2014, 2015. Why you want to share it in 2016?" asked the five judge constriction bench of Justice Dipak Misra, Justice A.K. Sikri, Justice Amitava Roy, Justice A.M. Khanwilkar and Justice Mohan M. Shantanagoudar.

"There is a third party also on your network," said Justice Misra as it was pointed out that though the name of the user is not shared but the "attributes of the persons are shared".

Defending the new privacy policy, senior counsel Sidharth Luthra, appearing for the service, told the bench that they don't even know what was being shared between two people using the online messaging service and it was "free of cost and voluntary".

He said that petitioners and others including the intervenor want to use WhatsApp but don't want to submit to its terms and conditions.

Cementing the position stated by Luthra, senior counsel Kapil Sibal said: "We have a billion users, there is not one complaint that a part of encrypted message has been shared."

The court was told this in the 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 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.

Appearing for intervenor Internet Freedom Foundation, senior counsel K.V.Viswanathan told the court that "unregulated and brazen collection and collocation of data and metadata by WhatsApp, Facebook, and their ilk, ... creates chilling effect on their (users) minds and shackles their free thought and expression, directly impinging upon their fundamental right under Article 19(1)(a) of the Constitution".

Referring to the rights guaranteed under Articles 19(1)(a) and 21 of the Constitution and Article 12 of Universal Declaration of Human Rights, he said, "... these guarantees not only create a negative right against the State of non-interference, but also cast a positive obligation on the State to enact such measures as are required Ato ensure that these freedoms are meaningfully exercised".

Senior counsel K.K.Venugopal, appearing for Facebook, questioned the maintainability of the petitions by Sareen and Sethi, as he commenced his arguments which will continue on Tuesday.