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The Internet Freedom Foundation has moved the Supreme Court seeking an interim stay on
Whatsapp's updated privacy policy and guidelines to safeguard the personal data and privacy of over
400 million Indian WhatsApp users.The intervention application is filed in special leave petition filed by
Karmanya Singh Sareen and Shreya Sethi in 2017, challenging the 2016 privacy policy of the
company....
The Internet Freedom Foundation has moved the Supreme Court seeking an interim stay on
Whatsapp's updated privacy policy and guidelines to safeguard the personal data and privacy of over
The intervention application is filed in special leave petition filed by Karmanya Singh Sareen and Shreya
Sethi in 2017, challenging the 2016 privacy policy of the company. The matter is being heard by a
In the instant application filed though Advocate TVS Raghavendra Sreyas, IFF has stated that the
2021 Policy of Whatsapp is highly invasive and has been unilaterally forced upon Indian internet users.
It has therefore urged the Court to grant an ad-interim order, restraining the sharing of any personal data
At the outset, the Applicant has stated that WhatsApp cannot be treated like any other private
messaging service provider and allowed to engage in predatorial conduct because the Competition
Commission of India has prima facie found that it holds a dominant position in the relevant market of
"The indispensable nature of WhatsApp's services is also evident from the reliance placed upon it by
government and public authorities," for instance service of summons through Whatsapp and sharing of
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The Applicant has submitted that the 2021 Policy provides more details about the usage and log
information, device and connection information, and location information collected by WhatsApp, and
reveals the highly invasive and granular nature of metadata collected by WhatsApp.
Further, it shares data with Facebook for the following purposes: (i) Personalizing features and content;
(ii) Completing purchases and transactions; (iii) Providing integrations to connect a user's WhatsApp
Furthermore, it is submitted that in a significant departure from the guaranteed end-to-end encryption
that protected the content of a user's conversations, the 2021 Policy states that Facebook may have
Under the updated privacy policy, Whatsapp maintains that conversations on its platform are end-to-end
The Petitioner has however contended that Metadata means data which provides information about
other data, and in the context of private messaging platforms like WhatsApp, metadata can reveal just
as much sensitive information about an individual's life as the actual content of a message.
1) Merely knowing that an individual is part of a group titled 'LGBT Delhi' can allow WhatsApp and
Facebook companies to draw inferences about a person's sexual orientation, even if the messages
2) Even relatively innocuous seeming categories of metadata, such as the battery level of a user's
device (added in the 2021 Policy), can be weaponized in the right context. For example, if ride hailing
services such as Uber or Ola gained access to information about battery levels of their customers, they
can theoretically charge higher rates to customers whose battery is running low and who are desperate
In this backdrop, the Petitioner has relied upon the nine-Judge Bench decision in KS Puttaswamy v.
Union of India & Ors., (2017) 10 SCC 1, where the Court recognized the dangers of aggregation, when
small bits of information about an individual are pieced together to reveal a fuller picture of their
personality.
Reference is also made to the 'International Principles on the Application of Human Rights to
Communication Surveillance,' which are a statement of international best practices that were launched
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at the sidelines of the UN Human Rights Council in Geneva in September 2013. As per this document,
metadata may reveal even more about an individual than the content of communications itself, and thus,
In light of this, the Petitioner has submitted that WhatsApp's data collection and sharing practices,
enshrined in its privacy policies, are violative of an individual's fundamental right to privacy and are
unconstitutional.
The Petitioner has submitted that the 2021 Privacy Policy is violative of the privacy principles that have
been recognised by the Group of Experts constituted by the Planning Commission of India under the
1) Notice
WhatsApp is required to inform its users about the entities with whom it may share personal data and
any changes in its privacy policy, in order to get informed consent. However, the WhatsApp privacy
policies are only in English, and as such, specific and informed consent is impossible for the nearly 90%
of the population that does not speak English and will not be able to understand what they have
consented to.
The 2021 Policy does not permit users to opt-out of the sharing of their personal data with Facebook
companies for marketing purposes. This is a violation of Clause 11 of the PDP Bill.
3) Purpose limitation
Personal data must be processed for a clear, specific and lawful purpose and only such data should be
collected that is limited to, or incidental to the stated purpose [Clauses 4 and 5, PDP Bill]. However, the
purpose for data collection specified in the impugned policies is vague and ambiguous, and is in effect,
The 2021 Policy allows sharing of information collected by Whastapp with Facebook Companies, which
the latter will ultimately use in its online advertising business model.
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The Petitioner has submitted that sharing of large quantities of metadata between WhatsApp and
Facebook companies will allow ad-tech vendors to triangulate the identity of an individual across
"By linking the identity of a user across multiple platforms, ad tech vendors can build a 360 degree
comprehensive profile about a user's demographic characteristics and interests, which can then be used
For instance, it submitted that Facebook may enable law publishers to target its ads towards senior
male lawyers, above the age of 45 years, within 4 km radius of the Supreme Court of India. The
acquisition and analysis of user data helps improve such targeting for advertising purposes, thereby
making the transfer and usage of user related data from WhatsApp to Facebook companies particularly
relevant.
The Petitioner emphasized that the dangers of such targeted advertising became evident recently when
Facebook started showing advertisements for body armour, gun holsters and other military equipment to
users with extremist views who were reading articles about the Capitol Building attack in Washington
DC.
No opt-out option
The Applicant has submitted that the 2021 Policy has been unilaterally forced upon Indian internet
users, the vast majority of whom primarily rely on WhatsApp's services to communicate with their
"The 2021 Policy was presented as a fait accompli and users who did not click "Agree" to grant consent
to the revised terms by 08.02.2021 would have lost their ability to use WhatsApp's platform," the
application states.
"It's A Private App, If You Don't Want To, Don't Use It": Delhi High Court on Plea Against
It adds that though implementation of the updated Policy has been postponed, WhatsApp has not given
It is alleged that by not providing the Indian users with an opt-out option, Whatsapp is depriving them of
having any modicum of control over their personal information being shared with Facebook Companies.
The Applicant has therefore urged the Court that Whatsapp be directed provide its users with an opt-out
option while using its services, to allow users to opt-out of sharing their data with Facebook for
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The Applicant has stated that Whatsapp is discriminating between its Indian users and its users based in
Europe.
It is worth noting that in the European Region where a proper legislative framework for data protection
exists in the form of the GDPR, WhatsApp has included more privacy-friendly policies and has clearly
stated that it will not share any data with its parent company, Facebook, for advertising purposes, the
Applicant submitted.
Differential Policy Of WhatsApp For Indian And EU Users Major Cause Of Concern:
For instance, the updated Whatsapp privacy policy for EU provides that any information shared by
WhatsApp with Facebook Companies' cannot be used by the latter for its own purposes.
Thus, the Applicant has urged the Court to direct Whatsapp to provide the same standard of privacy
The Applicant has emphasized that the dangers of the unilateral changes in WhatsApp's policy are
amplified in the absence of a data protection law in India and thus, there is an emergent need for the
Court to issue interim guidelines for data protection, until a robust statutory enactment is brought by the
legislature.
It is submitted that the need for a data protection law in India was recognized by the Supreme Court
It is stated that even whereas the Supreme Court expressed concerns over the delay in enacting a
legislative framework for protection of the right to privacy in consideration of the rise of commercial
exploitation of personal data using big data analytics, more than three years have passed and there is
In these circumstances, it is urged, there is a need for intervention by the Supreme Court by laying down
guidelines as regards data collection, protection and sharing of personal data by WhatsApp and
Background
The main petition in the instant case was initially filed challenging the August 2016 privacy policy of
Whatsapp, when WhatsApp began sharing the data of its users with Facebook for marketing and
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advertising purposes.
The matter was last heard by a Constitution Bench of the Supreme Court September 9, 2017 and the
case was thereafter adjourned based upon Central Government's decision to appoint a Committee of
Experts, chaired by Justice (Retd.) BN Srikrishna, to deliberate on a data protection framework for India
A writ petition has been filed in the Supreme Court by Confederation of All India Traders seeking
issuance direction to Union Government to take all necessary steps / actions to safeguard and secure
the privacy of citizens and national security by ensuring that mobile application providers such as
whatsapp and other internet based messaging services do not compromise, share and/or exploit the
information and data including messages, audio, video and other information of users in any manner
whatsoever.
Meanwhile, the Delhi High Court remarked that WhatsApp is a 'private app' and that the users
voluntarily use the app even though they have the option to not use it. A Single Judge said that it will
issue notice on the petition challenging the updated privacy policy only after it understands the concern
of the petitioner against the application and its contentious updated privacy policy.
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