‘Can’t users not use WhatsApp?’ asks Delhi HC
Justice Sanjeev Sachdeva reiterated his questions from the previous hearing—how is this a problem if WhatsApp is a voluntary app? “If you don’t want to access WhatsApp services, you can choose not to… It is not something which makes it mandatory for you to download before you want to operate your phone. It is a purely optional application,” he said. He also asked Rohilla what made WhatsApp so special given that most apps have similar terms and conditions where they share users’ data with third parties.
Karmanya Singh Sareen looms large: Can the court direct the government to make laws?
In his petition, Advocate Chaitanya Rohilla had asked the court to “lay down guidelines” under Section 79(2)(c) read with Section 87(2)(zg) of the Information Technology Act to prevent WhatsApp from sharing any user data with Facebook or any other third parties.
“ “The respondent Nos.1 and 5 shall consider the issues regarding the functioning of the Internet Messaging Applications like "WhatsApp" and take an appropriate decision at the earliest as to whether it is feasible to bring the same under the statutory regulatory framework.”—Delhi High Court order in Karmanya Singh Sareen and Anr v Union of India and Ors (September 23, 2016)
It is important to note that the Karmanya Singh Sareen case impleaded the Telecom Regulatory Authority of India, under the Ministry of Communications, while Rohilla has petitioned the Ministry of Electronics and Information Technology.
As Mukul Rohatgi also informed the court, Sareen had contested the Delhi HC order and approached the Supreme Court. The matter is still pending before the apex court and in the last hearing in 2017, Solicitor General Tushar Mehta had informed the five-judge bench that the government of India had formed an expert committee, headed by retired Justice B.N. Srikrishna, to draft the Personal Data Protection Bill. Since then, two drafts of the Bill have been released and the latest draft, the 2019 version, is being deliberated upon by a Joint Parliamentary Committee headed by BJP MP Meenkashi Lekhi. Multiple stakeholders, including Facebook, have already submitted their comments, both in person and in writing, to the Committee and a report on the 2019 Bill is expected in the upcoming Parliament session.
While Manohar Lal Rohilla, at least twice, claimed that the Bill “has not seen the light of the day”, senior advocates Mukul Rohatgi and Kapil Sibal on behalf of WhatsApp, Senior Advocate Arvind Datar on behalf of Facebook, and Additional Solicitor General Chetan Sharma on behalf of the Indian government all corrected the record. Justice Sachdeva remained clear on the issue: “I am still not clear what direction you are seeking from the court if there is already a bill that has been brought up before the Parliament. It’s for the Parliament to take a view. This court is not going to direct the Parliament.”
Sibal argued that Rohilla “has no locus here because unless the law is put in place here, nothing can be done here”. Courts cannot decide these matters “when there are regulatory authorities which have to decide these matters”, he said. Manohar Lal Rohilla immediately said that this lack of regulatory authority is his concern, prompting Sibal to say, “The regulatory authority will come in once the law is put in place.” As per the PDP Bill, the regulatory authority in question is the Data Protection Authority which, as per a number of experts, has lost much of its independence between the 2018 and 2019 drafts.
Government is already seeking a response from WhatsApp
Rohatgi, on behalf of WhatsApp, informed the court that the government of India had written to WhatsApp on January 18, asking for “certain clarification about the policy”. “We have to respond by today [January 25]. We will respond today,” he said. Forbes India had earlier reported
‘Why give preferential treatment to EU users?’ asks Indian Government
“ “This differential treatment is certainly a cause of concern to the government.”—Chetan Sharma, Additional Solicitor General
Sharma also argued that the “scope and expanse” of WhatsApp warrant the need for “reasonable and cogent” policies, something which, he said, is being done by the Personal Data Protection Bill, 2019. Moreover, he argued that by not giving users the option to opt out of sharing data with Facebook, WhatsApp was leveraging its own social significance “to force users into a bargain which may infringe on the interest and relations of information privacy and information security”.
HC gives govt time to submit its response
Justice Sanjeev Sachdeva dictated the following order:
“Learned counsels appearing for Respondent 2, WhatsApp Incorporated, submit that a communication has been received from the government of India seeking certain information and the same is being responded to. Learned Additional Solicitor General appearing for the Union of India submits that the matter is being looked into at the highest level and communication has been sent to WA seeking certain information. He prays for an adjournment to place on record the steps taken by the government of India in the matter.
“In view of the above, renotify on March 1.”
In his petition, that Forbes India has read, Rohilla made the following arguments:
- WhatsApp discharges public functions and thus “cannot be allowed to go berserk at its whims and fancy”. He cited a July 2020 Supreme Court order that allowed notices to be served through WhatsApp given the COVID-19 pandemic to that effect. It should, however, be noted that the order allows other services such as email, fax, and competing instant messaging services such as Signal and Telegram to be used as well. The only condition is that in addition to IM services, the notices must also be served the notice via email on the same day.
- WhatsApp is violating users’ consent by sharing users’ information with Facebook and third-parties as that changes the purpose for which users give it their personal information, which is to communicate.
- WhatsApp compromises national security of India as the platform may store some user data in other countries, and such storage will be governed by the laws of that country.
- Users cannot refuse to share data with Facebook. WhatsApp’s revise policy robs users of their choice to not share their data with Facebook-owned and third-party apps. Furthermore, the petition argues that there is no clarity on which all companies the data will be shared with, when it will be shared, to what extent, and how it will be used.
The petition further argues that sharing data with Facebook is a sign of WhatsApp’s integration with Facebook so that “Facebook, WhatsApp and Instagram (…) all become part of one package”. “Brow bearing” users into accepting the revised policy by February 8 “can not [sic] be accepted in a democracy”. It should be noted that the outcry after WhatsApp’s announcement compelled the company to defer it policy until May 15.