SC’s Privacy Judgment Casts Its Shadow over WhatsApp’s Data Sharing Policy Case

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The WhatsApp Case, being heard by the five-Judge Constitution bench of the Supreme Court, took an interesting turn today, with the Court and the counsel examining the impact of the recent landmark privacy judgment of the Court of the proceedings.

At the outset, Madhavi Divan, counsel for the appellant, referred to the paragraphs in the privacy judgment, which have relevance in the lawsuit. Thereafter, Additional Solicitor General, Tushar Mehta, informed the bench about the constitution of the committee of experts, led by former Judge of the Supreme Court, Justice B.N. Srikrishna, to debate on the data security framework for India. Mehta stated that after the committee submits its report; a legal philosophy would be enacted regulating the data security.

Senior counsel, K. V. Vishwanathan, appearing for the impleaded party, cited to the paragraphs dealing with informational privacy in the privacy judgment which expressly noticed the concerns brought up by the petitioner in this shell. Specifically, he referred to paragraph 174 of the privacy judgment, which dealt with metadata, and the protection against non-State players. He stressed the need to lay down guidelines, using the Visakha precedent, till Parliament enacted a law for data protection.

Justice A. K. Sikri intervened to say that it should be entrusted to experts to deal with it, rather than the Court taking up the chore of putting down the guidelines for data security.

When the question of WhatsApp passing on its information to Facebook came up, senior counsel for WhasApp, Kapil Sibal asked the petitioners to specify what is being spent along.

Madhavi Divan, while explaining what is being passed on, asked the bench to preserve the matter pending, as WhatsApp’s policy is unconscionable, as it tells its users, “Take it, or forget it”.

When Kapil Sibal justified sharing of data by WhatsApp, pointing to similar sharing from Google, the bench took objection to it, stating he could not justify a wrong, merely because others are guilty of the same thing.

Facebook’s counsel, Arvind Datar referred to Paragraph 136 in the Privacy judgment, to suggest that legislative interference in data protection is wanted, in terms of the privacy judgment, as the matter is extremely complex.

Both Vishwanathan and Madhavi Divan emphasized the demand for an ad interim injunction restraining the respondents from sharing the data with the third parties.

As both Kapil Sibal and Arvind Datar offered to file affidavits to allay the fears of the petitioners, the bench gave them four weeks for the purpose, and promised them that if the affidavits do not need any sort of intercession by the Court, it may not pass any interim order.

The Constitution bench is led by the Chief Justice of India, Dipak Misra, includes Justices A. K. Sikri, Amitava Roy, A. M. Khanwilkar and Mohan M. Shantanagoudar.

The instance will be listed for hearing at 3 p.m. on November 20.

By: Manavi Joshi

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