CJI to WhatsApp: You may be 2-3 trillion firm, but people value privacy

The three-judge Bench headed by the CJI and also comprising Justices A S Bopanna and V Ramasubramanian, was hearing an application filed by two college students, Karmanya Singh Sareen and Shreya Sethi.

The court, which noted that WhatsApp’s new privacy policy was being brought into effect at a time when a law on data privacy was pending the consideration of the central government, gave the parties four weeks to reply.

Senior Advocates Kapil Sibal, Arvind Datar, and Mukul Rohatgi, who appeared for the social media companies, sought to deny suggestions that they were sharing the data of Indian users.

“We can swear that we neither store or share personal data. All this is a red herring”, Rohatgi said. The messages are fully encrypted, and even WhatsApp can’t see them, he said.

The CJI said, “People have grave apprehension about the sharing of data… We will tell you what we read in the media. People think if A messages B, then the fact that A messages B is disclosed to Facebook. People have these apprehensions.”

As the counsel denied this, the CJI added, “We are telling you what we hear and read. There is a concern that the circuit of messages is revealed by WhatsApp.”

Intervening, Solicitor General Tushar Mehta said: “There are national apprehensions.”

Senior Advocate Shyam Divan, who appeared for the petitioners, said there was substance in the apprehensions articulated by the court. He said there was huge metadata that was being shared for the profit of the companies.

Earlier during the hearing, counsel for the technology platforms contended that the court had earlier this month asked a petitioner who had filed a similar plea to approach the High Court.

Divan then pointed out that the current application was related to a matter related to the old privacy regime of the two platforms when Facebook acquired WhatsApp, and which matter was referred to a Constitution Bench of the apex court in April 2017.

The new privacy policy announced in January has one set of privacy standards for Europe and another for India, Divan said. This, he added, comes at a time when the Personal Data Protection Bill remains pending.

The senior counsel referred to media reports that the government had sought an explanation from WhatsApp on the new policy, and added that the company itself had extended the deadline for accepting the new policy to May 15.

He said he was also praying for a direction to the Ministry of Electronics and Information Technology to ask WhatsApp to defer implementing the new privacy policy until the concerns were addressed.

Sibal said the plea lacked substantive grounds, and added that Delhi High Court was already considering similar petitions.

He said the policy was applicable to all the rest of the world except Europe, because Europe has a special law. The court asked Sibal to put what he was saying on oath.

The SG said, “Whether a law is there or not, right to privacy is a fundamental right and it cannot be infringed or violated”