Supreme Court To Hear Plea To Put WhatsApp Under Government Regulation

Customer and privacy may put a new spin on App-regulation in India

It’s ironical, the world we live in now. An inventor creates a product from his imagination, and he/she has complete right over it. However, as the product gains popularity, it no longer only belongs to the inventor. It becomes part of world’s resource pool.

And that’s fine, that’s how the world works.

Thomas Edison could not possibly have reclaimed ownership of his idea and his invention, neither could Graham Bell.

But how does it transcend from being a private service/app into a public utility?

That’s the question that’s put WhatsApp at the center of a large debate in India lately.

The free-to-use messenger service born wild and free just eight years ago now has over a billion active users across every corner of the globe. So it’s a world entity already. Then it was acquired by Facebook two years ago.

This past week the Supreme Court of India agreed to examine a plea that was based on some Indian citizens’ apprehension of the subversion of WhatsApp users’ right to privacy being compromised by it’s recent announcement of intent to share information with Facebook.

Early last year, WhatsApp announced that they would be acting upon it’s promise to share its user data and information with its parent company Facebook, as per one of the fine points buried in the Facebook acquisition deed. This had led to a lot of pushback from privacy watch-dogs all around the world. Europe, the U.S., India — all reacted adversely to this decision.

“You can choose to walk out of WhatsApp if you want to protect your privacy”, the Supreme Court of India had initially told two law students who’d lodged the plea. They had challenged a Delhi High Court order upholding the company’s 2016 policy which allowed it to share user information with its parent company Facebook.
They saw it as a violation of user privacy.

“What is disturbing here is you want to continue using this private service and at the same time want to protect your privacy… You can choose not avail of it [WhatsApp], you walk out of it”, Chief Justice of India J.S. Khehar had said.

On the other hand senior advocate, Harish Salve argued that WhatsApp, with its widespread reach, has now become a “public utility service”, quite like your phone calls and text messages. Going by that logic, WhatsApp must be held to the same privacy standards as a phone call or a text message and this sharing of data must be seen as a grave violation of privacy.

“The Government of India should protect my rights under Article 19 [freedom of speech and expression]. The Telecom Regulatory of India says that interception of calls without government’s order is an illegality… Here, TRAI is doing nothing”Mr. Salve submitted, along with an argument that today a lot of companies are offering free phone calls and messages too (pointing to Jio here, are we now?), but that does not mean that it is okay for those to be intercepted and for the user privacy to be breached there.

That argument did not quite fly with Chief Justice Khehar. “No, no. You pay for your telephone calls. You get your privacy… Here [WhatsApp] you don’t pay”, he countered, “this is a private service”.

Since WhatsApp is a private service, that isn’t paid for, thus the policies governing it are different, meaning, the users can not expect the same level of privacy.

Late last year, the Delhi High Court had upheld WhatsApp new privacy policy on sharing of users information with Facebook effective from September 25, 2016. In addition, it had also directed WhatsApp to “delete completely” from its server information, data and details of all users who choose to delete their account.

A High Court Bench headed by Chief Justice G. Rohini had also directed that “so far as users who opt to remain on WhatsApp are concerned, their existing information/ data/ details up to September 25, 2016, shall not be shared with Facebook or any group companies”. The High Court had also declined to tell the messenger service to give an option of “do not share’’ to its users, something that is being demanded right now.

The Bench had said that users who have a problem with this policy can any time delete their accounts.

The High Court, in addition, directed the Centre and the TRAI to “consider issues regarding functions of Internet Messaging Applications like WhatsApp and take an appropriate decision at the earliest as to whether it is feasible to bring the same under a statutory regulatory framework”.

With privacy concerns increasing over the last few months, and criticism shooting through the roof, Facebook has said that it is temporarily suspending the data sharing between two of its primary apps. The company also stated that it had earlier suspended such data collection in the U.K.

Lending an ear to the argument, the Supreme Court agreed to hear it further during the summer holidays in mid-May, along with certain other important constitutional cases.
The Supreme Court has also sought the help of the Attorney General Mukul Rohatgi in this regarding, having directed Salve to argue the case himself.

This could result in a new policy that could bar Facebook from taking data from its subsidiary WhatsApp. This would happen by enabling an option on WhatsApp to not share the data, and users could make their own choices then.

Notices have been issued in this regard by the Supreme Court to the Central Government, Facebook, WhatsApp, and TRAI, and they have been asked to reply within two weeks, after which further hearings will take place.

We will keep an eye out for more, but in the meantime, we suggest that if you are someone who has privacy concerns on your mind, then you should spend some time going through the terms and conditions on all the ‘free’ services you use, especially social media. There may be other apps and platforms that you may have to reconsider using.

Originally published at Chip-Monks.