Widely publicise that users are not bound to accept 2021 privacy policy: Supreme Court directs Whatsapp

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The Supreme Court on Wednesday directed Whatsapp Inc to widely publicise that its users are not bound to accept its 2021 privacy policy which has been challenged in Supreme Court on account of being violative of the right to privacy.

A bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar directed Whatsapp to advertise that those who may not have accepted the privacy policy of 2021 in five national newspapers on two occasions so that they are aware that the functionality of the messaging app which they continue to use, won't be affected till the new data protection laws are enforced.

However, the court, at this juncture, has refused to grant interim relief to the petitioner, which sought the right of those users who had accepted the policy terms of the messaging app to opt out. Thus, on the larger issues of contention, the Supreme Court has stated that it may not be justified for the top court to grant such relief at this stage as the "matter may require the consideration of issues that rise".

Petitioners Karmanya Singh Sareen and Shreya Sethi have approached the Supreme Court in a special leave petition, challenging the 2016 privacy policy of the messaging app, stating that the data of Indians who use Whatsapp needs to be protected and sharing of private data with Facebook and all its group companies is violative of the users' right to privacy.

However, in January 2021, Whatsapp rolled out a new privacy policy, asking users to accept the policy till February 2021. This policy does not allow users with an opt-out option from sharing data with Facebook Inc. As a result, on February 15, 2021, an application was filed challenging this new policy and the then CJI Bobde led bench issued notice on it. 

Both policies, of 2016 and 2021 permit WhatsApp to share data with Facebook Inc. and all its group companies for the purposes of commercial advertising and marketing and are now under challenge before a constitution bench of Supreme Court, after it was referred by a division bench on April 5, 2017.

Yesterday, Solicitor General Tushar Mehta suggested to court that the matter may be heard after The Personal Data Protection Bill, 2022 is introduced. Senior Advocate Kapil Sibal agreed with this contention. However, Senior Advocate Shyam Divan stated that the petition had nothing to do with the bill but was independent of it.

Key Questions:
  • Whether WhatsApp’s Privacy policies of Whatsapp violates the Right to Privacy of users?
  • Whether a privacy policy should have specific ‘opt-out’ provisions without the user having to ‘opt-out’ of the application in totality? In this case, whether WhatsApp is obligated to provide a specific option of ‘Not to share data’ with Facebook?
  • Whether the manner of seeking ‘consent’ from users who are unable to read and understand the new privacy policy amounts to deception?


Case Title: Karmanya Sareen Vs. Union of India & other batch petitions