Jul 29, 2020

The prime conflict in recent years has become the battle between national security and a person's privacy. Privacy online is the only way to control who has access to your data and information and determine how that access is wielded. Whatsapp messenger has become the most popular application worldwide for free messaging calling and sharing of media. The Supreme Court was concerned that the Citizens rights were being affected by 2016 privacy policy of Whatsapp and asked the centre to take necessary steps for the protection of users till regulation is formed. A five-judge constitution bench started hearing the Whatsapp privacy policy matter in detail, and the question that was raised was on the application sharing the user data with the other social networking application that is Facebook. The Supreme Court also issued a legal notice to Whatsapp over an appeal against the instant messaging service for not corroborating the privacy of its users and to the centre for seeking regulations to protect personal information. Whatsapp Application changed its privacy policy in 2016 as it permitted to share its data with Facebook. This change in the Whatsapp Private Policy was challenged through a writ petition by Karmanya Singh Sareen before the Hon'ble Delhi High Court.Partial relief was provided, and the writ petition was disposed of in the sameyear. An SLP was filed before the Supreme Court by Karmanya Singh Sareen and Shreya Sethi challenging the High Court Judgement. It was filed to protect the rights of users of Whatsapp. The issue that was mainly raised was that Whether Right to Privacy was being violated of millions of citizens of India by the policy of 2016 of Whatsapp. The issue of data protection and the right to privacy is correlated to each other. Whatsapp has over 1 billion users who makeover at least 500 million phone calls, share's 700 million photos, 100 million videos, and 1 billion messages per day. in India with over 160 million active users is Whatsapp's biggest market[1]. Supreme Court in one its judgement held that Right to Privacy as a fundamental right and extending it to include informational privacy might impact the collection and sharing of data by technology Application such as Google, Facebook, Apple and Whatsapp in India. Facebook acquired Whatsapp in 2014 and was targeted because it was the most successful application among various similar platforms operation in India.There was an argument that Whatsapp only shared phone numbers, Device ID,registration details and the last seen status to which the bench replied saying what the need to share these details now when it wasn't being shared till 2012 was. Advocate Madhvi Divan appeared in behalf of the two students Karmanya Singh Sareen and Shreya Sethi who have challenged the policy[2]. No the relief was granted, which amounted to the infringement of the Fundamental Rights under Article 19 and Article 21 of the Indian Constitution. Whatsapp, according to its policy in 2009, stated that it would share any user data with any Whatsapp’s founder, Jan Koum on 2014 had said that in spite of the merger with Facebook there would be no personal user data will be shared with Facebook.With this background, in spite of Whatsapp giving an option to users to opt-out of sharing of data within 30 days of the announcement, concerned citizens are alleging compromise of user rights. This sudden change in privacy standards has not gone unnoticed on the international level as well. In the United States,two groups have asked the FTC to require Whatsapp to obtain "express opt-in consent" from its existing users for the privacy policy change. The court gave its view and ordered Whatsapp to delete all the user's information,data and details for such users who completely delete Whatsapp before September 25 2016. The court also ordered the existing user information till September 25, 2016, shall, not be shared with Facebook and group companies. Only data post September 25, 2016 may be shared. The court also stated the relevant government departments to decide at the earliest whether internet messaging applications like Whatsapp can be brought under statutory regulatory framework.In the absence of any laws in India, the argument before the apex court is that this sharing of users' data against their will affects their right to life and personal liberty granted under the constitution. Another submission pertains to the fact that right to freedom of speech and expression granted under Article19(1) (a) of the constitution too is being violated by this sharing of personal data by Whatsapp. Besides these provisions, amended IT Act under section 43(a)provides for safeguarding sensitive personal data and this could further bolster the case of the petitioners before the apex court. On the contrary, itargued that the Recipients could only decrypt the message and Whatsapp could never read it, and one of the key features of Whatsapp is very reliable that is end-to-end encryption by enabling that level of encryption means that messages sent using the application are only visible to the message's sender and receiver. Whatsapp does not have access to read the message, and therefore,WhatsApp can't reproduce them if ever required by government or law enforcement agencies. The application has also become a vehicle for widely distributing misinformation and fake news. The Supreme Court issued notice against the instant messaging service for not ensuring the privacy to Whatsapp of its users and the centre for seeking regulations to protect personal information. It was stated that Facebook and Whatsapp should act as independent companies and process user's data on separate terms and conditions. Whatsapp application has claimed it cannot trace messages, whereas some cyber experts claim that it can share meta-data. Still, meta-data also reveals a lot of other information about individuals which is quite important for individuals. Privacy laws will only work better if we differential who they will regulate and what they will protect.

[1] Aarthi S Anand, Why the Supreme Court Shouldn'tAllow Whatsapp to Share Data with Facebook, THE WIRE, April 17.

[2] Whatsapp privacypolicy affects users' rights? SC to examine, Outlook, The News Scroll, May 15.