On July 9th, WhatsApp informs Delhi High Court that the app users will not have to opt for the controversial new privacy policy until the Personal Data Protection Bill, 2019 comes out. On behalf of WhatsApp, Senior Advocate Harish Salve further explained that the functionality will not be limited for the users who are not accepting the new privacy policy which was supposed to take effect from February 2021. Earlier the Union Ministry of Electronics and Information Technology (MEITY) sent a notice to WhatsApp indicating that the new privacy policy of WhatsApp is violating the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), Rules, 2011.
Both WhatsApp and its owner Facebook received revised notices from the Competition Commission of India (CCI) on June 8th and June 4th respectively to cooperate with the ongoing inquiry on their privacy policies. Back in January CCI decided to start an independent investigation regarding the new privacy policy of WhatsApp based on the news reports. They said that WhatsApp is trying to get a dominant position to gain more users by targeted advertising and thereby “stalking” the users for that purpose. Facebook and WhatsApp challenged CCI’s March 24th order issuing an investigation of their privacy policies. The single-judge bench of Justice Navin Chawla declared on April 22nd that CCI could have waited for the results of the petitions in the Supreme Court and Delhi High Court, held against the instant messaging app for their new privacy policy. He also denied the petitions by WhatsApp and Facebook of restricting the ongoing investigation done by the CCI. On May 6th, the Delhi High Court issued notices based on the appeals and requested the Centre to step in. On June 21st, the CCI reported to the high court that the ongoing investigation report will take some time as they have not yet received the requested information from WhatsApp and Facebook. Senior advocate Harish Salve representing WhatsApp said that the problem was the last date of responding to the June 4th notice was June 21st and the new privacy policy is undergoing scrutiny by the Supreme Court.
At the end of the hearing on July 9th, Senior Advocate Salve asked for 2-3 weeks time to prepare for the replies to the CCI notices. He went on saying, “We replied to MEITY’s notice seeking a response, saying that WhatsApp will not limit functionality for some time and continue to show users the updated version…We will maintain this approach until Data Protection Bill comes into force. We have voluntarily agreed to put the update on hold till then.” He also argued on CCI’s authority to probe into the matter by saying “Supreme Court is hearing appeal against WhatsApp privacy policy. Even assuming there is suo motu jurisdiction, can this matter be inquired into by CCI when it is before a superior constitutional authority?” In a public statement on behalf of WhatsApp, advocate Salve said, “Government has asked to shut down the policy. We have said we will not enforce it till Data Protection Bill comes out. That is open-ended because we don’t know when the Bill is going to come out…We have said we will not do this for a while. Suppose the Bill allows me to do it, we will have completely different ramifications”.
With 500 million Indian WhatsApp users, the company has bigger expansion plans for its Indian market. Now it will be very interesting to see how the instant messaging app deals with the ongoing legal issues and what is in store for its users.
Chenoy Ceil Lawyer 