WhatsApp case: Supreme Court will examine privacy violation
11:19PM Mon 16 Jan, 2017
NEW DELHI: In a significant decision, the Supreme Court agreed on Monday to examine whether Facebook's access to details of calls, messages, photographs and documents exchanged by 160 million Indian users of WhatsApp violated citizens' right to privacy.
The court sought responses from Facebook, WhatsApp, Centre and Telecom Regulatory Authority of India (Trai), and also sought the assistance of attorney general Mukul Rohatgi keeping in mind the constitutional question raised by two petitioners.
Taking on Facebook Inc, WhatsApp and Facebook India Online Services Pvt Ltd are engineering student Karmanya Singh Sareen, 19, and law student Shreya Sethi, 22.
In a David vs Goliath litigation, legal luminary Harish Salve argued for the minnows. He said WhatsApp had become a utility service for exchange of messages, calls and documents for a huge population. This warranted a direction from the SC to the Centre to regulate WhatsApp, now owned by Facebook, to prevent it from accessing data created by citizens and disseminated through their medium.
A bench of Chief Justice J S Khehar and Justice D Y Chandrachud was initially hesitant to entertain the petition. "Isn't WhatsApp free? When the service is free and the user has the option of opting out from using the services, how can they be restrained from accessing the data sent through the medium created by them? It is a facility extended to you free of cost, take it or leave it," it said.
Salve carefully invoked the citizen's right to speech and expression guaranteed under Article 19 and right to privacy under Article 21 of the Constitution and said free messaging, call or video call services provided by WhatsApp had become a public utility service.
The unsuspecting population which created the data was the real owner of it. "Can anyone in the name of a free service access private and confidential data?" he asked. The bench said, "What worries us is that private communication must remain private if the service is availed at a cost. We understand a telecom service provider getting penalised for unauthorised snooping on telephone calls or messages sent by the users. But when you take a stand that 'allow me to use the free service yet protect my privacy', it becomes a completely different issue."
Salve said the sheer volume of messages and calls made daily through WhatsApp had turned it into a virtual telecom service provider, who would lose its license in case of illegal tapping or accessing of calls or messages. "WhatsApp had promised to protect the privacy of user data when it started in India in 2010. The privacy policy was continued even after Facebook took over WhatsApp in 2014. But suddenly, the policy was changed in August 2016. The government has a constitutional duty to protect privacy and free speech of citizens," he said.
The bench asked Salve to be ready to argue the matter in full during the long summer vacation starting from May 11. The CJI also hinted at the matter being placed before a constitution bench.
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