Supreme Court Could be forced to take a premature stand in the WhatsApp Privacy policy petition.

A peculiar issue has emerged in the Supreme Court today where, the petition on the Privacy Policy of WhatsApp filed in 2017 is now forcing a new hearing on January 17, 2023. This is pushed to be the final hearing in this case and may provide immunity to WhatsApp to go ahead with its proposal to use the Privacy Policy it has proposed under the blessings of the Supreme Court.

If Supreme Court upholds the petition, it would adversely affect many provisions that the Government may be planning to introduce on Intermediary liability through the Intermediary Guidelines, the Telecom Bill, the Data Protection Bill and the future amendments to the ITA 2000.

The issue which prompted the petition was that WhatsApp wanted to amend its Privacy Policy and had issued a notice that unless a specific Privacy policy is agreed to, it would stop the services for the Indian users.

The objection to the Privacy Policy was that it did not provide adequate Privacy protection to Indian users and at the same time provided a better Privacy protection to EU users clearly discriminating the Indian users  against the EU Users. had also pointed out that the Privacy Policy was also objectionable since it provided grievance redressal to users with a jurisdiction of the US Court bypassing the Indian Court system.

Now, in the urgent hearing that took place today, reference was made to the Government withdrawing the PDPB 2019 and the proposal to come up with a new version. At the same time there was no discussion that if the Government has promised to get the Bill passed in the next Budget session, where is the need for urgent disposal of the case through a hearing as finally agreed to in January 2023 before the Budget session.

Strangely the impression given to the Court  appeared to that new Bill is being created only to address the WhatsApp issue as if it is an attempt to put them in an adverse position which should be prevented.

At the end, the Court ordered that by December 15, 2022, all the counsels would provide their pleadings and a final hearing would be held on January 17, 2023.

The hearing is before the Constitutional Bench as if the Privacy Policy of WhatsApp is a constitutional issue.

We are all aware that the concern of WhatsApp is commercial exploitation of the personal data of Indian users before the Government bringing in some form of restrictions on transfer of data outside India.  This could seriously affect the commercial interest of Face Book and it is not clear   if this is an issue involving the Protection of Privacy of Indian Citizens. It could turn out to be a classic case of using the Privacy pretext to protect the business interests of Face Book.

The counsel representing the Government (Solicitor General Mr Tushar Mehta) did not provide the confidence that  the interest of the Indian Government would be fully protected against the WhatsApp’s demands. There could be a serious need for intervention of an appropriate body to ensure that the Government does not deliberately give away the case to WhatsApp.

The honourable Supreme Court  also appeared to be unclear at this time of the issues involved in the WhatsApp petition and will be dependent on the pleadings to be filed. If the Government counsel plays a weak hand, the case would be won by WhatsApp before it starts.

Nobody seem to also remember that at present the law applicable for this case is Information Technology Act 2000 as amended in 2008 and even if the new Bill is tabled in draft form in the coming session of the Parliament is unlikely to be passed when the Court sits for a final hearing and hence the case has to be decided on the current law of privacy protection as enshrined in Section 43A/79 and its rules.

If these issues are not properly placed before the Supreme Court,  the decision of the Supreme Court in January 2023 will be based in inadequate information and on a wrong position of law. It could also bring undue pressure on the Government which may force an immature version of the new draft law .

There is a hint that there is a conspiracy to let the Data Horse bolt away before the stable is locked.

We need to wait and see how the media interprets this development tomorrow.

In the meantime, I request that an appropriate legal firm which has a comprehensive view of the issues involved intervenes  in the case.


Related Articles:

WhatsApp petition deserves to be rejected at admission stage itself.

WhatsApp relegates India to the Third World of Privacy Regulation

WhatsApp needs to change its Jurisdiction clause in the Terms or else, exit from India.

About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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