October 18th, 2016
By Ayushi Harsh
In August, 2016, WhatsApp Inc., a famous internet based social chatting application, announced that it would change its policy and begin sharing names and phone numbers of its users with its parent company Facebook Inc. to allow its members “to communicate with businesses that matter to [them]” through various notifications from entities such as airlines and banks. [1] The company changed its privacy policy to enhance the business-consumer relationship by providing scheduling reminders, flight statuses, receipts from purchases, and notifications sent via text messages or email. [2]
This shocked tech observers around the globe who accused WhatsApp and Facebook of going against its original security and privacy policy of not using data of its users. [3] Further, the Federal Trade Commission approved a settlement with Facebook that required the company to gain consumer permission before disclosing information that went beyond Facebook’s standard privacy settings. [4]
In response to the new WhatsApp policy, litigation commenced in India under what is known as “Public Interest Litigation” (“PIL”), which protects public interests under Article 226 of the Constitution of India. [5] The High Court of Delhi presided over this case against WhatsApp and Facebook. [6]
The petitioners claimed that people trusted and linked to WhatsApp, which required users to put their personal details into the app, destroying the users’ data privacy. [7] This amounts to an invasion of the right to privacy, which is a fundamental right granted under Article 21 of India’s Constitution. [8] Plaintiffs asked the court to force WhatsApp to stop sharing data and require Facebook to stop using this type of data for commercial market. [9]
On September 23, 2016, Chief Justice Sangita Dhingra Sehgal ruled that Facebook and WhatsApp are private entities and their users essentially accept a contract to use the apps, which binds them to the terms of the websites. [10] Further there was a special privacy clause for international users, which stated that the use of the WhatsApp website and services was governed by California law; this allowed the court to conclude that it lacked jurisdiction. [11]
After tackling the contractual issue, the court moved on to the second issue involving Article 21 of the India’s Constitution and held that the petitioner’s claim was invalid because the Indian judiciary never “authoritatively decided” how Article 21 relates to the right to privacy. [12] Further, the court did not see any constitutional or statutory violation and dismissed the case, stating that the “issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.” [13]
After dismissing the PIL, the court restrained WhatsApp from sharing any data of its users with Facebook and directed the Indian government to formulate a regulatory framework for the internet based applications like WhatsApp and its privacy policies for users. [14]
Ultimately, the court’s ruling order has little effect, since WhatsApp already provides the choice to users to delete all their existing data from their accounts. [15] Users may also choose to stop their information from being shared with Facebook. [16] With respect to the government developing its privacy laws in relation to internet privacy issues, I suppose that we will have to wait and see what happens.