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A Single Judge Bench of Delhi High Court today recused from hearing a petition challenging Whatsapp's new privacy policy.

The bench of Justice Prathiba M. Singh while recusing herself, further directed to treat the instant plea as a Public Interest Litigation (PIL) and entreated this to be listed before a different bench on Monday, January 18, 2021.

Filed by Advocate Chaitanya Rohilla, the plea alleges that certain clauses in the New Policy directly hit the fundamental rights of the individual. 

The petitioner has put forth various reservations with regard to Device and Connection information, Location information, Business of Whatsapp, Third party services and services providers. 

"....excerpts from the Policy of WhatsApp clearly depicts how WhatsApp has made a mockery out of our fundamental right to privacy while discharging a public function in India, besides jeopardising the National Security of the country by sharing, transmitting and storing the users data in some another country and that data in turn will be governed by the laws of that foreign country. There remains a possibility that that foreign country might be a hostile country to India. Brazenly, WhatsApp has also made it mandatory for its users to accept this Policy by 08.02.2021 or else the services and accounts of the respective users would be terminated," the plea states.

In this context, it is alleged that this type of arbitrary behaviour and browbeating cannot be accepted in a democracy and is completely ultra vires of the fundamental rights enshrined in the Constitution.

It is stated that the updated policy takes away the choice the users had until now to share their data with other Facebook-owned and other third party apps.

The plea further states that the updated privacy policy 'virtually gives a 360-degree profile into a person's online  activity. This level of insight into a person's private and personal activities is done without any government oversight at present or regulatory supervision.'

The Petitioner while relying on the judgment of the Supreme Court in Justice K.S. Puttaswamy and Others v. Union of India and Others [AIR 2017 SC 4161] has alleged that the updated Privacy Policy directly attacks the fundamental Right of Privacy of the Petitioner and every other citizen of India, guaranteed under Part-III of the Constitution of India.

In regard to the violation of right to privacy, the plea reads:

"And if WhatsApp is stating that it is now going to use the users data and share it with the largest social network in the world, which is embedded on every second website and collect data from there as well, the integration of this data will essentially mean that the user is perpetually under the surveillance of the Facebook group of companies."

This arbitrary sharing of data with third parties and Facebook have a chilling effect on Privacy, the petition reads.

Furthermore, it is contended that by compelling its users to accept the updated privacy policy, 'Whatsapp has has put a sword upon its users, compelling them to share their data to them and ultimately other companies. This type of dissemination of information about an individual involves high risk of misuse of that data.'

It is pertinent to mention that the Petitioner also highlights that in the absence of any law that gives data protection for the citizens of India, WhatsApp is trying to go beyond the purview of data collection by sharing it with third parties and Facebook. It is stated that there remains no clarity as to for what purposes the data so collected would be used for and till what extent.

In this perspective it is argued that the boundaries that people establish from others in society are not only physical but also informational. There are different kinds of boundaries in respect to different relations. Most of the information about individuals can fall under the phrase "none of your business". whatsApp has given an option of ‘take it or leave it’.

"That WhatsApp has become an important mode of communication amongst the citizens of India and is also being used to aide multiple Governmental functions as well. So much so that even the Hon’ble Supreme Court of India, vide Order dated 10.07.2020 in Suo Moto Writ Petition (C) No. 3/2020 in ‘Re: Cognizance For Extension of Limitation’ had allowed the service of summons via electronic mode including WhatsApp. This substantiates to the fact that WhatsApp in discharging a Public Function despite being  a private entity. In the prevalent Covid-19 pandemic times, Confidential proceedings such as that of the mediations is being conducted by WhatsApp.", the petitioner submits.

Relying on the aforesaid, the Petitioner has prayed before the High Court to issue Injunction order, therein restraining Whatsapp from enabling these updated privacy policy with immediate effect.

The petitioner has urged the Court to issue a writ of Mandamus to the Union to "lay  down certain guidelines in exercise of its powers under Section 79 (2)(c) read with Section 87 (2)(zg) of the Information Technology Act, 2000 and under Constitution of India to ensure that Whatsapp does not share any data of its users with any third party or Facebook and its companies for any purpose whatsoever."

Case Title: Chaitanya Rohilla v. Union of India [W.P.(C) 677/2021]

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