The five-judge constitution bench has managed to schedule these hearing after much prodding and cajoling
The Supreme Court on Monday will finally hear matters on whether WhatsApp sharing user information with its parent company Facebook, violated the citizens' right to privacy. In this regard, Senior Advocate Harish Salve, representing the petitioner, submitted a list of six issues that could be debated upon.
The five-judge constitution bench has managed to schedule these hearing after much prodding and cajoling. The government wanted to postpone the hearing for a few months, whereas senior lawyers arguing the matter plead for time off. However, the matter takes on added significance in light of an order passed by an Italian court, where WhatsApp was fined over $3.3 million for 'forcing' users to share their personal data with Facebook.
28 European countries have expressed their concern over WhatsApp's new privacy policy that came into effect on September 25, 2016. The popular social media app has been asked by all of the European Union data protection authorities to stop sharing users' data with Facebook as there were doubts over the validity of users' consent.
When the matter was heard in the Delhi High Court, a division bench led by the then Chief Justice G Rohini, ruled that WhatsApp could not share user data generated before September 2016. Post that it could act in accordance to its terms and conditions.
In 2014, Facebook took over WhatsApp and in August 2016, it changed its privacy policy to allow the transfer of its users' personal information to the parent company for processing — a move that has caused much concern here.
"WhatsApp issue cannot be decided without considering these points. First, the privacy rights of Indians which pending Adjudication in Aadhar matter. Second, whether agreement with WhatsApp of consumers can be questioned in Article 32 of the Constitution," says advocate Virag Gupta.
Gupta observed that even if SC passes any order against WhatsApp how can same be enforced when this company has no office or establishment in India.
In an earlier hearing, Additional Solicitor General (ASG) Tushar Mehta, representing the Union on Thursday informed a constitution bench that it was wedded to an "individual's freedom of choice" though it was willing to debate the finer points of law pertaining to the right to privacy since the same is already under consideration by another Bench of the Court in the Aadhaar matter.
While submitting his issues, Salve laid out the changes in WhatsApp's user policy since September 2016. Salve said, "WhatsApp User Policy now allows it to retain any videos, picture etc. which are widely circulated. This means they are snooping, picking up data, and sharing it with its parent company — Facebook." Salve clarified that, though the information would not be published in any public domain, he still objected to the snooping.
Entering the fray, the Internet Freedom Foundation, an advocacy group pleaded for intervention as it wanted to participate in the debate on the right to privacy and "assist the court" on this matter. Representing them, KV Viswanathan spoke about the larger issue of a metadata collected and used by WhatsApp thus enabling other parties to get private information about the individual user. "If somebody has an ailment, or a sexual preference, information can be gathered through the contents of the chats and then shared with Facebook etc."
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