SC questions WhatsApp on change in user rights

The Supreme Court on Monday questioned WhatsApp's change in its privacy policy to share user data in 2016, two years after it was acquired by social media giant Facebook.

"Why did you change the policy and what is the purpose for sharing the data?" a five-judge Constitution Bench headed by Justice Dipak Misra asked WhatsApp on day one of the hearing.

A five-judge constitution bench is hearing matters pertaining to a users' right to privacy and whether WhatsApp sharing user information with its parent company Facebook, violated the citizens' right to privacy. The bench led by Justice Misra also comprises of Justices Amitava Roy, AK Sikri, AM Khanwilkar and M Shantanagouder.

When the bench was informed that Senior Advocate Harish Salve was at the International Court of Justice in the Hague representing India in the Kulbhushan Jadhav case, the apex court asked Senior Advocate KV Vishwanathan to kickstart the day-long proceedings.

Representing the Internet Freedom Foundation (IFF), an intervenor in the case, Viswanathan said that unlike several other countries, India does not have any data protection legislation. In the absence of regulation, the government was obliged to protect the rights of its citizens, he implored.

"Facebook and WhatsApp are the violators according to us and how to deal with them is upto the Union of India as the government has an obligation to protect the rights of its citizens," he said. Vishwanathan added that due to the 2016 privacy policy, "I am under fear and my communication is hampered."

"Life of fear, anxiety, tension and torture is not a free life. This court is not powerless to lay out a guideline for this," he told the bench, which will continue hearing the matter on Tuesday.

However, Senior Advocate Siddharth Luthra's submissions who denied that its pre-2016 policy his client WhatsApp didn't include data-sharing and asserted that the company never snooped on messages or shared users' content.

"What is shared is the phone number of the user, the identification number of the devise used, user's registration detail and last access of the service by the user," Luthra said. He added that in today's fast rapidly developing technological world it was important to communicate with other platforms for enhanced services.

"Our promise is to provide enhanced services by sharing limited information without impinging an individual's rights," he said.

The court then made several observations and directed several questions towards the instant messaging service.

"What is bothering us is that the earlier policy was a transaction between WhatsApp and the user. Now you create a mega-data base to exploit it commercially," Justice Roy observed.

Under the new policy, introduced in 2016, WhatsApp can share all its users' data with Facebook. Alleging that the decision impinged the privacy of 160 million Indian users, two petitioners appealed against a Delhi High Court judgment which partly allowed the WhatsApp to share data.

"Why do you share? You were not sharing it in 2012, then why have you done it in 2016? You say the name is not shared but the attributes of identity are shared. What is the need to share the attributes of identity? Now they (users) fear what you will share," the bench said, adding that it breached a users' trust.

During an earlier hearing, the Union had 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.

The Centre added that the Telecom Regulatory Authority of India (TRAI) was framing a regulatory policy on data protection and was mulling over a comprehensive date protection framework.

However, advocate Madhvi Divan, appearing for the petitioners, told the bench that the regulation in place was outdated by the technology, a fact acknowledged by the Centre in an affidavit.

"You (Centre) have said you are making a regulation on this. Till then, as a citizenry, what is the protection," the bench asked. "Suppose somebody has written an inland letter to X. Can Y intervene and read it? They feel your privacy clause affects their right to freedom of speech. They say fear corrodes their right."

Representing Facebook, senior advocate KK Venugopal, told the bench that "message conveyed by A to B on WhatsApp is never seen by anybody. At no time, it will be available to perusal by anybody else as it is end-to-end encrypted."

This was also challenged by Divan who told the court that Facebook and WhatsApp are foreign corporations with business across the globe where they also asserted that they would not share the user data.