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Supreme Court notice to WhatsApp.

The Supreme Court on Monday told WhatsApp and Facebook that Indians valued their privacy more than the trillions of dollars the social media firms were worth, even as the companies sought to argue that the apprehension over a contentious new privacy policy was a ‘red herring’.

A top court bench, headed by Chief Justice of India (CJI) SA Bobde, decided to examine WhatsApp 2021 privacy policy by the messaging service and issued notices, saying the social messaging app needed to disclose the kind of user data that would be shared with other companies under its new policy.

‘People in India have grave apprehensions about loss of privacy.You may be a $2-3 trillion company, but people value their privacy more than that. And it is our duty to protect people’s privacy,’ observed the bench, which also included justices AS Bopanna and V Ramasubramanian.

In January, WhatsApp renewed its terms of service and privacy policy, which were to initially come into effect on February 8, but have since been deferred to May 15. The company said it will share details about users’ conversations with business accounts, and that accepting these terms were mandatory. Anyone not agreeing to the terms will need to delete their accounts, the company said at the time, triggering a seeming shift by many to rivals such as Telegram and Signal.

During a hearing on Friday, the apex court shot down submissions by WhatsApp and its parent company Facebook that the apex court did not require to examine the 2021 privacy policy since the Delhi HC was hearing a separate bunch of challenges to the same policy.

The bench took note that a previous petition raising similar issues regarding the 2016 privacy policy of WhatsApp was pending before a Constitution bench, and commented that it was not appropriate for a high court to deal with the issues that were already pending before the Supreme Court.

The Union government urged the top court to scrutinise the 2021 policy instead of waiting for a high court to decide. ‘Right to privacy is a fundamental right and they (WhatsApp and Facebook) must protect Indians’ rights. They cannot share data of Indians. They cannot compromise with the privacy right of Indians,’ Mehta submitted. Appearing for petitioner Karmanya Singh Sareen, senior lawyer Shyam Divan questioned WhatsApp over lowering the privacy standards. He pointed out that since WhatsApp had deferred its new policy till May 15, the SC should decide its validity before that.

However, senior advocates Kapil Sibal, Arvind Datar, Mukul Rohatgi and Sidharth Luthra, who appeared for WhatsApp and Facebook, sought to emphasise that the social media entities were functioning within the bounds of the Indian laws. ‘This [2021] policy is applicable for the rest of the world, including India, except Europe because Europe has a specific law.

The General Data Protection Regulation (GDPR) applies to these 27 countries in Europe and thus, there is a different policy. Once India also has a law in this regard, we will change accordingly,’ Sibal and Datar said.


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