A week ago,two millennial babalog flied a public interest litigation(PIL) before the Delhi court against whatsapp’s new privacy policy which informed user that their data would be share with the facebook unless user opted out.facebook had acquired whatsapp for $19 billion dollars  two year ago and it was only a matter to time before the comapny6 begain to harvest the goldmine of data with whatapp .Rather than dismiss the PIL in limine the court admitted the PIL and gave direction to whatsapp to delete all information of users of who opted out before September 25 and do not share information, from before September 25, of those users who continued with whatsapp.

The journey of this PIL will provide an account of how the PIL system works in India.

What’s new in this case?

The government has indicated that it will be exploring some sort of regulations to protect the data privacy of consumers in India. A PTI report quoted Additional Solicitor General (ASG) Tushar Mehta as saying, “We are coming out with a regulatory regime on data protection. Freedom of choice needs to be protected and there cannot be any doubt over it.”

The case itself was first filed by Karmanya Singh Sareen and Shreya Sethi last year, after WhatsApp had changed its privacy policy and announced it will be sharing data with Facebook. The petitioners had argued that this was violation of user privacy, and filed a petition in the Delhi High Court.

The petitioners want

the issue of online privacy and asks for the state to step in ,petition  states ““It is also the responsibility of the State to guarantee and ensure the protection of the personal and private data and information of these millions of citizens, when they use such modes of communications to engage in conversations and exchange private and confidential data and information. Petition also points out that in India with the internet gaining so many users, more and more people are coming online and using these applications. since such services are still relatively new, there is no statutory or regulatory framework / mechanism in place in order to ensure that these services comply with the scheme of regulations envisaged for other such telecommunication services – including the protective features thereof.”

Whatsapp fit in this

The case is filed on the whatsapp privacy policy changes , pints out how the app he app will be collecting information of users, which will include phone numbers, names, user connections, usage and log data, transactions, status, device and connection information, and sharing this with Facebook, which is the parent company.

According to a PTI report, senior advocate Harish Salve, who is appearing for the petitioners, argued in court that someone could snoop into the messages shared by users. However, WhatsApp is end-to-end encrypted, and technically no third-party can read the messages. But as the report notes, Salve also questioned encryption method and argued, “Privacy has multiple dimensions.

Facebook and whatsapp response

WhatsApp, which is end-to-end encrypted by default, says no one can read messages being shared by users. Interestingly, according to an Economic Times report, Facebook lawyer KK Venugopal also told the court, “Those who find the new privacy policy irksome or violative of their fundamental rights, can quit,” adding that users have full freedom to give up WhatsApp and Facebook.

However, Kapil Sibal, who is also on council for WhatsApp has pointed out the data sharing does not include messages, so privacy is not compromised. WhatsApp’s lawyers argue the privacy policy change is in compliance with the IT Act.

The Merger Agreement

On febreuary19, 2014 facebook,Inc(parent’) enter into an Agreement and plan of Merger and Reorganization (the Merger Agreement) with Rhodium Acquisition Sub II ,Inc., a Delaware corporation and wholly owned (in part directly and in part indirectly) subsidiary of Parent (“Acquirer”), Rhodium Merger Sub, Inc., a Delaware corporation, a direct wholly owned subsidiary of Acquirer (“Merger Sub”), WhatsApp Inc., a Delaware corporation (“WhatsApp”), and Fortis Advisors LLC, as the stockholders’ agent.Terms of this agreement is

  • merger Sub will merge with and into whatsApp and upon consummation of the first merger, Merger sub will cease to exist and whatsApp will become a wholly Owned subsidiary of acquirer.
  • The Merger Agreement contains customary representations, warranties and covenants by Parent and WhatsApp.

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Failure of the agreement

The only reason to change this policy was to improve the quality of service provided by whatsapp and the facebook and also provide facebook with better data for targeted advertising

Analysis done by the two students and filing a PIL regarding new privacy policy:

Two young millennial from the New Delhi elite decided to file a public interest litigation against the change in Whatsapp’s privacy policy.

The two millennial (student) are ,first is Karmanya Singh Sareen (Son of additional Socitor Maninder Singh and senior advocate Pratibha M.singh and the second is sherya is the daughter of senior advocate sandeep sethi.

The student spent a day analysing the new privacy and created comparative charts between the old and the new policies before approaching Senior advocate Pratibha Singh for advice , the  research in this place, the student also create a rough draft of the PIL,which Singh went through.

The PIL (Public Interest litigation) filed

“We looked at the new privacy policy and found there were huge loopholes in it. Most people don’t even read the entire policy before clicking the accept button. I thought that as a low student I should take up the issue”. Says Sethi .

“the old policy explicitly mentioned a heading called “Data we do not collect” and said that we don’t collect content of messages . the new policy however as a heading called “data e collect and mention sontent. It also says they retain popular photos for a longer time but what is a longer time is not defined anywhere. The company can use data as they see fit” says sethi.

Sareen also says the new policy as “branch of trust” for the user who had “got on the app on its pro privacy platform”. With the HC whatsapp to delet all data collected prior to September 25, when the new privacy is set to come into effect, the student say that the judgment is a right step toward protecting data privacy

Herring in the Supreme Court

Ideally the Supreme Court should have dismissed the appeal, preferably with costs because the Delhi High Court had provided very valid reasons for dismissing the PIL. However, strange things happen in the Supreme Court these days. Court says that  Yet within two paragraphs, of the above statement admitting that it lacks jurisdiction, the court makes a leap of logic by passing three orders – the first restraining Whatsapp from sharing with Facebook the information of users who deleted their account, the second restraining Whatsapp from sharing information, from before September 25, of those users who continued with Whatsapp and the third, directions to the government to consider a regulatory framework for services such as Whatsapp.

Final decision:

The most obvious fallacy with these orders is that the court cannot pass any orders  after it has conceded the lack of jurisdiction over the subject matter of the PIL. But in reality, the Court’s order has little effect because Whatsapp already provides for both options. Its new privacy policy, allows users to delete all existing data shared with Whatsapp by simply deleting their accounts. The new policy also informs users that they “can choose not to have your WhatsApp account information shared with Facebook to improve your Facebook ads and products experiences.” In other words, the first two orders of the Court are already covered under the terms of Whatsapp’s policy. The third order, to consider a privacy framework, is a general direction which is not binding on the government.  However the media spin given to this otherwise irrelevant judgment portrays the case as path breaking.