Does the Privacy Judgment Send Warning Signals to WhatsApp?

WhatsApp shares with Facebook the information provided by users, violating the right of privacy of the individuals.

While the Supreme Court on 24 August ruled that the right of privacy is a fundamental right guaranteed by the Constitution of India, another bench of the Supreme Court is hearing a case where individual citizens have challenged the terms of use of WhatsApp.

WhatsApp shares with Facebook the information provided by users, albeit after openly telling them, violating the right of privacy of the individuals.

A Deeper Dive Into the Judgment

Some say that the privacy judgment would bring the curtains down on the WhatsApp case. A deeper look may reveal that the situation is not so clear.

First, during the hearing of the WhatsApp matter, the Supreme Court categorically asked the counsel not to address it on the privacy aspects as another bench was hearing the case. With this judgment, however, the argument will definitely be raised again.

Second, privacy being declared a fundamental right has relevance in the context of breach of privacy by the state, ie, the Parliament, the government, etc. To apply the same principle in the context of a private party’s contractual arrangements with its users may not be that easy.

Additionally, privacy has been defined in the judgment as meaning “the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual.”

If this interpretation/definition is taken at face value, then the individual would have the right to be left alone and not choose to subscribe to WhatsApp, since the service allegedly does not respect the individual’s privacy.

Informational Privacy a Facet of Right to Privacy

Then again, the challengers of WhatsApp may find some material and arguments in stating that the privacy judgment has recognised the need for data protection by specially dedicating a section to “informational privacy”. The Supreme Court has categorically held that “informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well.”

This observation, the petitioners in the WhatsApp case would say, helps them push for a determination of their rights and striking down the condition of sharing of information.

What makes the entire debate more interesting, however, is that the court, while observing the need for legislation in the context of data privacy, concluded with a recommendation to the Union government “to examine and put into place a robust regime for data protection.” This is because it noted that the Central government had set up a commission and expert panel to examine this issue headed by a retired judge of the Supreme Court of India.

In light of this conclusion and recommendation, it remains to be seen whether the bench of the Supreme Court hearing the WhatsApp case would defer to the decision of the commission and await the outcome of the recommendations or whether it would proceed to decide the matter on other grounds.

(The author is a managing partner at Arthe Law)

(The opinions in this article are the author’s alone, The Quint neither endorses nor is responsible for the same)

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