The Centre told the Supreme Court Friday that personal data was part of a person’s fundamental right to life and cannot be shared freely by internet service providers or social networking sites. The development comes at a time when a debate is on about the right to privacy and is contrary to the stand already taken by the government before the Supreme Court in the Aadhaar matter that citizens do not have a fundamental right to privacy.
“My (individual) personal data is intimate to me. It is an integral part of my right to lead a life with dignity. If there is any contractual obligation between the individual and the internet service provider and it impinges on the individual’s right (under Article 21), State will have to intervene and regulate sharing of such data,” Additional Solicitor General P S Narasimha told a five-judge Constitution Bench of Justices Dipak Misra, A M Khanwilkar, Amitava Roy, A K Sikri and M M Shantanagouder during a hearing on the WhatsApp privacy matter.
The petitioners have challenged WhatsApp’s policy of sharing user data with its new parent company Facebook, saying it amounts to infringement of fundamental rights under Articles 19 (freedom of speech and expression) and 21 (right to life) of the Constitution.
The Centre assured the court that it will bring a regulatory mechanism to oversee services like WhatsApp to protect user data.
Appearing for WhatsApp, senior counsel Kapil Sibal said the litigation was a vendetta by telecom companies which are afraid that it provides free calls and messaging services to users. WhatsApp had been singled out for attack and there was no litigation against any other messaging service in the country, he said.
Data is used to empower citizens, Sibal said and pointed out that the case will open a Pandora’s box as even services like Google which share information to enhance experience will be affected.
Senior counsel Harish Salve who appeared for the petitioner, denied the charge that there was any malafide intention behind the petition. The problem, he said, is WhatsApp can read my data, is collecting meta data and profiling data.
Pointing to the need for State intervention to regulate service providers, Salve asserted that telecommunications was a public duty and certain functions of the private enterprises were now public functions.
Sibal contended that WhatsApp does not share data with third parties and, hence, Salve’s submission was without substance.
The bench, meanwhile, asked Sibal why was the platform storing user data if it had no intention to share it. The court adjourned the matter for hearing on September 6 since a nine-judge Constitution Bench is currently hearing a plea in the Aadhaar matter to declare right to privacy a fundamental right.
Appearing for the Centre in the Aadhaar matter, Attorney General K K Venugopal, while referring to two earlier judgements of the court — in M P Sharma’s case of 1954 and Kharak Singh case of 1962 — had told the bench that there was no right to privacy in the Constitution.