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Whatsapp’s either-or stand on privacy may add to legal troubles, govt decision soon

Earlier this month on May 7, WhatsApp said it would not delete any accounts that did not accept its updated terms of privacy policy by May 15.

Written by Aashish Aryan | New Delhi |
Updated: May 12, 2021 5:35:01 pm
WhatsApp, WhatsApp tips, WhatsApp tricks, WhatsApp features, WhatsApp chat backup, how to backup WhatsApp chats, WhatsApp news, WhatsApp update, messaging appIn a notice on its website, WhatsApp said it was continuing to remind those who haven’t had the chance to review and accept the terms, and that after a period of several weeks, “the reminder (that) people receive will eventually become persistent”.

The Ministry of Electronics and Information Technology (MeitY) is looking into WhatsApp’s announcement that it would over time limit users’ access to their chat lists, incoming voice or video calls if they do not accept the new terms of the privacy policy, according to government officials in the know of the development. A decision on the issue is likely to be made soon, one of the officials said.

Earlier this month on May 7, WhatsApp said it would not delete any accounts that did not accept its updated terms of privacy policy by May 15. On Monday, however, the platform said that though it would not delete the accounts, it would restrict such users’ access to their chat list and they would eventually not be able to e to answer incoming voice or video calls over the app.

In a notice on its website, WhatsApp said that it was continuing to remind those who haven’t had the chance to review and accept the terms, and that after a period of several weeks, “the reminder (that) people receive will eventually become persistent”.

The new WhatsApp notice, tech and legal experts said, could be found to be in violation of the country’s laws on abuse of dominant position and is likely to be challenged before a court of law.

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“What WhatsApp is essentially doing here is that you either share your data with it or you will not be able to use its services. This is coercion disguised under the garb of “consent”, especially considering the fact that it is a dominant player in the market and because of network effects it will not be easy for a user to shift to other platforms,” said Prasanth Sugathan, legal director at SFLC.in.

Earlier this year in January, WhatsApp had, through an in-app notification, told its users that it had updated the privacy policy and that if they did not accept the updated terms by February 8, they would lose access to their accounts. After protests from users and privacy experts, WhatsApp pushed the deadline to May 15, but said it would continue to remind users to accept the updated terms.

This was despite the MeitY writing a letter to its global chief executive officer Will Cathcart, asking him to withdraw the update privacy policy, and later even approaching the Delhi High Court with an affidavit asking the court to intervene and stop the platform from rolling out the new policy.

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Meanwhile, the Delhi High Court as well as the Supreme Court are also hearing separate plea filed against WhatsApp’s new privacy policy. Experts believe that since the courts have not yet come to a decision in the case, the platform coming out with such a decision could be adversarial for it.

“There are precedents from US courts, where modification of terms even if its a free service, to the detriment of users may be struck down as unconscionable. This ‘take-it-or-leave-it’ may not be a sound argument merely because a service is free, more so when the entity itself has invited users to its platforms on the basis of terms of usage which it then seeks to modify” said Supreme Court advocate N S Nappinai, who is also the founder of Cyber Saathi.

Apart from these two cases, the Competition Commission of India (CCI) is also investigating Facebook for abuse of dominant position. The latest WhatsApp decision could land it into further trouble with the courts, Salman Waris, founder and partner at TechLegis said.

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“What WhatsApp is doing tantamounts to forced consent. If your treat the use of services as simply a services contract then such a contract is ‘void ab initio’. Additionally, there is also the strong possibility of this being treated as an abuse of dominant position,” Waris said.

 

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First published on: 12-05-2021 at 03:59:59 am

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