- On 19th February, 2014- WhatsApp was acquired by Facebook.
- On 26th August, 2016- As a part of the Facebook family of companies, WhatsApp receives and shares information with the
- On 23rd September, 2016- A Divisional bench of the Delhi High Court rejected and disposed the writ petition and passed partial relief, directed WhatsApp to delete the data, until 25th September 2016, of users who choose to delete the application as well as users who choose to retain the application on the mobile phones.
- However, information shared via WhatsApp messenger 25th September was allowed to be shared under the new policy. It held that it is always open to the existing users of WhatsApp who do not want to share their information to delete their accounts.
- On 17th December, 2016- The petitioner challenged the decision of Delhi High Court dated 23rd September, 2016 to Supreme Court through Special Leave Petition (Civil) No. 804 of 2017. The following issues were raised.
- Whether or not internet messaging services which equip users to exchange video/text/audio messages, data and make video or audio calls constitute ‘Telecommunication’ services and are liable to be regulated by the concerned authorities?
- Whether or not WhatsApp’s conduct of not providing an option ‘not to share’ data to the User with Facebook is contrary to law?
A. Since the relief is sought against the state, therefore, the writ is maintainable.
B. Entities and companies providing public service can and must be regulated. This argument was made referring to Professor Laurence Tribe on different manifestations of state power.
C. The myth of private contracts shall be attacked if it affects constitutional rights u/d Articles 14, 19, and 21.
D. The right to privacy can be even applied to non state actors.
E. Metadata was being shared between Facebook and WhatsApp apart from the content being shared.
F. WhatsApp’s policy of ‘take it or leave it’ contract violates A. 19(1)(a) as informed consent is a facet of A. 19(1)(a).
RESPONDENT’S CONTENTION THROUGH COUNTER AFFIDAVIT.
On 17th March, 2017
1. The users have voluntarily entered into the agreement and hence it is a consensual contract. Facebook and WhatsApp are private bodies and are therefore not menable to the writ jurisdiction of the High Court. Consequentially this SLP is also not maintainable because it arises out of the writ petition.
2. WhatsApp guarantees the secrecy of message content with the help of “end to end encryption” and thus neither Facebook nor WhatsApp has access and authority to content.
3. Petitioners tried to makeup personal harm and injustice into assertion public interest petition.
4. As the information shared by WhatsApp is not received by Facebook India Online Services Pvt. Ltd. and therefore the petition is not maintainable.
5. The petition against the Facebook India Online Services Pvt. Ltd. should be dismissed as the terms governing the use of Facebook services are entered between users located in India and Facebook Ireland Ltd.
6. Facebook India Online Services Limited does not own, operate, control or host the Facebook service or WhatsApp service or the servers that host the Facebook service or the WhatsApp service instead it deals with marketing support, technical support and sales support.
On 20th March, 2017
1. Telecom Service Providers don’t have any control, rights, and responsibilities for the content of Over-The-Top services (OTT) (services which are accessible over the internet and ride on private or governmental telecom operators for e.g. WhatsApp).
2. A consultation paper on regulating OTT has been issued by TRAI and recommendations are yet to submitted to the Department of Telecommunication.
3. Department of Telecommunications shall finalize policy direction on their regulatory and licensing framework for OTT services.
4. A committee on net neutrality has been formed for consideration of economic, security, privacy, innovation, etc., related to OTT services.
On 6th September, 2016
- Counsel on behalf of Govt. brought to note that a law in relation to data protection can only be brought up after a report of Committee of Experts to deliberate on a data protection framework for India.
- Also urged the court to lay guidelines.
- The bench rejected argument respondent of data being shared by Google stating that if other entities also share data, it doesn’t become a correct or bonafied practice
- The court asked Facebook and WhatsApp to file affidavit explaining what data being shared by them.
- In present case, introducing guidelines have already been sought.
- The case is pending before the larger bench of the Hon’ble Supreme Court of India.
ANALYSIS OF THE CASE