Sakina Tashrifwala
Published on: 30 September 2022 at 22:06 IST
Given the Centre’s assertion that a measure pertaining to personal data protection is being developed, the Supreme Court on Thursday postponed the hearing of petitions challenging WhatsApp’s privacy policy until January 2023.
A Constitution Panel bench comprised of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar was hearing the petitions filed against WhatsApp’s 2016 privacy policy. In 2017, the matter was submitted to the Constitution Bench.
When the case was called, the bench inquired as to why it had been referred. Senior Advocate Shyam Divan, who was representing the petitioners, said that no questions had been framed for reference. He stated that the petitions question WhatsApp’s privacy policies, which were later bought by Facebook (now Meta).
“There is a cleavage in the WhatsApp privacy policy which is applied to Europeans and the one applied here. The standards used in the EU is much higher and privacy enjoyed by them is of a higher order.”
“Indian users ought not be disadvantaged qua users in the global jurisdiction because privacy now is a fundamental right and has global implication. It is a global human right. In absence of local laws, global corporations have to adopt a golden standard”, Divan submitted.
Tushar Mehta, Solicitor General of India, briefed the bench that the Data Protection Bill submitted before Parliament had been withdrawn and that work on a comprehensive bill was ongoing.
“It is the stand of the government that Indian users cannot be discriminated against the other users of WhatsApp. Government of India is alive to the situation and a bill is underway,”, the SG wrote, urging that the bench consider the case once the statute is in place.
“If the government of India wanted legislation, it could have put it in place,” Justice Joseph said.
Senior Advocate Kapil Sibal, representing Meta-WhatsApp, argued that the litigation should not be limited to WhatsApp since privacy extends to everybody.
“Indian WhatsApp users are the most numerous in the world, thus the benefit and downside of having the greatest number of users is seen here,” Justice Joseph explained.
“The problem is not whether it is the greatest user or not; it is the law set by each country’s Parliament,” Sibal responded.
The bench said it will postpone the dispute until January 17 to see if a new data protection legislation will be introduced during Parliament’s Winter Session. It stated that the matter would be heard for the last time in January.
The bench also granted Advocate Vrinda Bhandari’s motion to enable the Internet Freedom Foundation to intervene.
The applications before the Supreme Court were filed in response to the Delhi High Court’s September 2016 decision, which declined to meddle with WhatsApp’s privacy policy. WhatsApp amended their privacy policy in 2021, which drew widespread public criticism. Following that, WhatsApp suspended its new policy.