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2021 Upgrade is not “mandatory”: Facebook-owned corporation ‘WhatsApp’ to Delhi High Court

Dated: May 15, 2021

                                                                                                                                                            - by Megha Bhatia

WhatsApp has said in an affidavit filed before the Delhi High Court that its recently revised privacy policy (for the year 2021) has no impact on the privacy of personal communications (of its users) with friends and relatives. 

The Facebook-owned corporation claimed in its affidavit that the 2021 Upgrade is not “mandatory,” and that no one is being forced to implement the latest update.

According to WhatsApp’s policy, users have the choice of accepting the 20 Update or opting out and ceasing to use the messaging site. They also have the option of deleting their WhatsApp accounts at any time.

Importantly, the messaging app has stated in its affidavit that it is under no legal duty to offer such “opt-outs,” and that it is therefore under no obligation to provide its services to consumers who do not agree to its terms.

Differentiating itself from other online services, WhatsApp explained in an affidavit that it is providing its customers the power and preference that some cannot have, and that other platforms aren’t as straightforward as WhatsApp is. Most platforms merely infer their users’ permission by continuing to use their service, whilst WhatsApp was specifically requesting for their consent.

In this context, WhatsApp has clarified that the Petitioners were singling out WhatsApp despite the fact that the terms and privacy policies in question were adopted by internet sites around the industry.

Aside from that, the affidavit claims that any involvement with the 2021 Update would “cripple the entire industry of internet-based applications and websites.”

 Furthermore, WhatsApp claims that the 2021 Update presents its customers with a straightforward and open statement of WhatsApp’s data policies, allowing them to make an educated decision about whether or not to accept the 2021 Update on their own.

Despite the fact that a Joint Parliamentary Committee has been debating the Personal Data Protection Bill, 2019 (“PDP Bill”) since January 2020, the Affidavit urges the Court not to establish additional data protection rights since it will be “contrary to the principal of judicial restraint.”

Naming Private Companies such as Google, Microsoft, Zoom, Zomat Republic World, Ola Cabs, True Caller, Big Basket, Koo, and public companies including Aarogya Setu, Bhim, Air India, Sandes, Government e-Marketpla (GeM), Indian Railway Catering and Tourism Corporation (IRCTC), etc. to show that they have similar privacy policies (as opposed to WhatsApp’s 20 policy) and that the abovenamed private companies have retained their right to collect their users’ data.

Background

In response to a public interest lawsuit filed in the Delhi High Court, the Centre had sought that WhatsApp be barred from enforcing its revised privacy policy and terms of service, which went into effect on January 4 2021, pending the court’s decision.

The petition, filed by Dr. Seema Singh and argued by Advocate  Meghan and Advocate Vikram Singh, claims that the current WhatsApp privacy policy, which was issued on January 4, 2021, violates Article 21’s constitutional right to privacy. Since, unlike the previous privacy policy, which was issued on July 20, 2020, which allowed users to opt-in or out of data sharing with other Facebook businesses, the current policy would not allow users to opt-out of their policy.

The Delhi High Court issued notice to the Centre and social media sites Facebook and WhatsApp last week, requesting answers to a petition questioning WhatsApp’s current privacy policy. 

The bench of Chief Justice D. N. Patel and Justice Jasmeet Singh was seeking an answer to a PIL filed by Harsha Gupta (an advocate and Educationist) through Advocates Vivek Sood (senior advocate) and Dhruv Gupta.

In the petition, the Union of India, WhatsApp, and Facebook have been named as respondent parties. 

Notably, the petition challenges WhatsApp’s general terms of service and WhatsApp Business terms of service of being in violation of the IT Act and the right to informational privacy, which is inherent in the constitutional right to privacy recognised in Article 21.

CCI’s Case

Furthermore, the Competition Commission of India requested a probe into WhatsApp’s latest privacy policy in March 2020, after making a prima facie finding that it was in violation of the Competition Act 2000.

“..the Commission is of the considered opinion that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct, in the garb of policy update”, said the order passed by the CCI. 

Last month, a single-judge bench of the Delhi High Court, led by Justice Navin Chawla, dismissed Facebook Inc. and its affiliate WhatsApp’s challenge to the Competition Commission of India’s order probing an investigation into WhatsApp’s current privacy policy on the grounds that it was potentially anti-competitive.

The court said the appeal lacked substance and declined to dismiss the CCI probe. On April 13, the bench had reserved its decision on Facebook Inc.’s and its affiliate WhatsApp’s appeal to a Competition Commission of India (CCI) order directing a probe into WhatsApp's latest privacy policy because it was anti-competitive.