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WhatsApp: Privacy, Data Sharing & Encryption – Supreme Court Litigation Update (18th April, 2017)

Apr 18,2017 | 01:17 pm

This case, which has come in appeal from the High Court of Delhi, wherein WhatsApp was directed by the honorable Court, to delete all information & data of its users collected on their servers up to 25th September 2016, the date on which their new privacy policy came into effect.

You can read more about it in our previous 2 posts titled “The WhatsApp Privacy Saga”.

This case was listed today before a 5 judge bench comprising honorable Justices Dipak Misra, A.K. Sikri, Amitava Roy, A.M. Khanwilkar and Mohan M. Shantanagoudar.

In today’s hearing, Senior Advocate Mr. Harish N. Salve, appearing for the petitioners, after giving some introduction with regards to the functioning of the internet, drew the Court’s attention to the affidavit filed by the Telecom Regulatory Authority of India (TRAI) and the counter affidavit filed by the Union of India. At this juncture, Mr. Mukul Rohatgi, learned Attorney General of India submitted that the stand of the Union of India is that there is going to be a regulatory regime to save the data base to guide the concept of net-neutrality.

On being questioned by the honorable court as to the real issues involved in the petition, before Mr. Salve could answer, Senior Advocate Mr. Kapil Sibal, appearing for WhatsApp, submitted that the matter could not have been referred to the Constitution Bench without framing the questions that needed to be referred. The same submission was made by Senior Advocate Mr. Sidharth Luthra appearing for Facebook.

This preliminary objection was resisted by Mr. Salve on the grounds that the direction for listing the matter before a five-Judge Bench need not be treated as a reference as postulated under Article 145 of the Constitution of India. He the Court that the Chief Justice of India is the master of the roster and he has the authority on the administrative side to place the matter before a five-Judge Bench, regard being had to the gravity, significance, and importance of the matter. The Court held that they shall delve into this preliminary objection at the time of delivery of the final verdict. Justice Dipak Misra said that when an issue is raised before the Bench, it must necessarily be addressed and that the Bench will be the one to put any controversies to rest in this regard.

Mr. Salve submitted that the policy that is formulated by WhatsApp is unconscionable and unacceptable, and also suffers from constitutional vulnerability since it maladroitedly affects the freedom, which is a cherished right of an individual under the Constitution. He contended that by imposition, WhatsApp cannot formulate such a policy under the garb of data sharing.

Mr. Sibal, vehemently resisting the submission of Mr. Salve, contended that WhatsApp does not share data such as voice and messages, so no part of the content which is exchanged between two individuals is ever revealed to a third party and, therefore, the submission of Mr. Salve is sans substance. It was also submitted by Mr. Sibal and Mr. Luthra that their action is compliant with Section 79 of the Information Technology Act, 2000. It was contended by them that the actions of WhatsApp and Facebook were in consonance with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

The Court directed Mr. Salve to formulate his propositions and file it by 24th April, 2017.

The matter was adjourned to be listed again on 27th April, 2017 at 3 P.M.

The details of the hearing on 27th April are given here.

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