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WHATSAPP PRIVACY POLICY: SHOULD INDIA ACCEPT IT?

Author : Chirantan Priyadarshan (Amity law school, Noida)

ABSTRACT

In this world where the technological advancements in our society have made our lives easier as compared to the older generation where with a combination of numbers, we can reach out to the ones we wish to communicate with. Where social media plays the crucial role in exercising the fundamental right to freedom of speech. Where social media is the platform to observe the changes in ideologies and morality of communities. It would be foolish to ignore the significance of social media playing the integral part in our lives.

With social media, where it has its advantages it also has its own evils. While we express our free thoughts, maintain our digital presence all our thoughts, ideas are stored, and those data should fall in wrong hands can be weaponized and used against the greater good and purpose of expression which can have drastic consequences.

For situations like these comes the privacy rules and regulations to safeguard and protect the voice of the common populace. Privacy provides a safety cushion and serves as a surety that the digital information and credentials stored are secure from any breach and only, they have the access who has the sole ownership of that data without being in fear of intrusion or interference.

PRIVACY AS A FUNDAMENTAL RIGHT IN INDIA

CASE – K.S PUTTTASWAMI V. UNION OF INIDA

  • K.S Puttaswami was a retired judge of Karnataka high court who filed a petition before the supreme court challenging the union of India on the constitutional legality of Aadhar as to be believed in violation of right to privacy.
  • The petition was brought up in 2012 before a nine-judge bench to determine the validity of the Aadhar laws and elucidate on weather right to privacy was guaranteed to a citizen as an independent fundamental right as guaranteed by the constitution of India.

KEY DISCOVERIES BY THE BENCH

  • The apex court established that the right to privacy is a fundamental right and need not be articulated separately but to be derived from Articles 14, 19 and 21 of the Indian constitution as it is a natural right that always had been an integral part of basic life and liberties of citizens to protect them from the scrutiny of the state in their home and of their life choices.
  • The apex court also clarified that the fundamental right to privacy is not an absolute right but falls within the reasonable restrictions of law.

– The existence of the law justifies the encroachment on privacy.

– The means adopted by the state are proportional to the objects and needs sought to be fulfilled by the law.

– A legitimate State aim or need that ensures that the nature or the content of this law falls within the zone of reasonableness and operates to guard against arbitrary State action.

WHATSAPP PRIVACY POLICY

Facebook has been a social media conglomerate since the beginning of 21st century and enjoys the primary social media service provider to somewhat in a monopolistic manner. The company acquired WhatsApp and Instagram 2 of the major social media platforms where a large proportion of audience around the world have their accounts registered in.

Being the parent company of these social media platforms (WhatsApp and Instagram), it would not be surprising for an average citizen to speculate that their data can be accessed to reviewed to analyze their likings and disliking’s to promote and endorse targeted advertisements and posts related to their likings or to “suggest” certain kinds of ideologies and happenings around the world they might take an interest in.

The WhatsApp users of India were notified by the WhatsApp stating the dispensing of data with their parent company include –

  • Account registration information (such as phone numbers)
  • Transaction data
  • Service-related information
  • The IP addresses

With this the notification mentioned the revised privacy policy to come to effect by 8th of February 2021, to users who do not wish to agree then they will have to quit the messaging platform.

DIFFERENT POLICIES FOR DIFFERENT REGIONS

India with its significant population of 1.38 billion provides for a larger spectrum of audience for WhatsApp. To put it vaguely with revised privacy policy of WhatsApp it will have access to information of every single user who agrees to the policy who wish to continue using the app. But the policy is not the same for everyone or so it seems to be.

WhatsApp has introduced a different privacy and data policy for Europe. While WhatsApp users in India are being forced to comply to the new polities as to continue enjoying the services, in the European regions remain unchanged for users in Europe to use to data to “improve its products and advertisements”.

As elucidated by WhatsApp over the privacy debacle in hope to clarify was the terms of service does not require its users in the European region to agree sharing the data in order to continue service. So why these discriminating terms for the Indian users?

Because of the “general data protection regulation, GDPR is a rigorous law of Europe which protects the privacy and data of its subjects unlike in India where personal data protection bill is yet to be enacted into a law.” As said by Dr. Kanika Seth, Cyber Law in an interview of India today.

CURRENT SITUATION

Upon a petition against the privacy policy of WhatsApp, Delhi high court commented “accepting the new privacy policy of social messaging apps will be a voluntary thing and one can choose not to use or join that platform if one did not agree with its terms and conditions as it is a private app.”

Further justice Sanjeev Sachdeva said to the petitioner that “it’s a private app as one who wishes to accept the terms and conditions can continue using or if not then can use another app which is suitable to them.”

Company’s statement

Upon facing the backlash from the users in India the company has pushed their implementation date to enforce the policy from 8th February to May 15.

In their official statement to the press, they assured the general public who frequent their platforms that their data is safe and secure as the messages are ended to end encrypted and shall remain that way, also they said they do not keep logs of everyone who is using their app messages or calls and neither the location nor contacts to be shared with the Facebook.

ISSUES AND TRUST

The parent company of WhatsApp i.e., Facebook is believed to be the major player in the social media industry and has enjoyed exponential success since its conception in 2004. But at the same time the company has also been in hot water with the legislative authorities of their home and of foreign countries after the infamous scandal of Cambridge Analytica due to its involvement, where Facebook was accused of sharing data with the said company which was misused for major political events like the presidential campaigns of 2016 of the united states and allegedly in Brexit and by Russia. 

Since then, the trust of the common populace is shaken, and the question arose that weather their data is secure or not?  Facebook in backlash received responses like #deleteFacebook movement, sanctions by the government and restitution of 100 million dollars to the securities and exchange commission of USA for misleading investors about the risks faced from misuse of data.

Facebook inc. was directed to pay a record-breaking penalty of 5 billion U.S Dollars with submission to new restrictions and a modified corporate structure when found in violation of the 2012 FTC order by deceiving the users about the ability to control the privacy of their personal information. And also, when the CEO of Facebook Mark Zuckerberg was summoned before the house finance services committee to which the CEO’s reaction to certain question and not knowing the answers was quite contradictory and in befuddlement was quite unnerving and dissatisfactory to the public in retrospect to the Facebook’s involvement in the biggest data privacy scandal.

CONCLUSION

As WhatsApp deals with its first ever legal problem with the authorities regarding privacy the question remains that weather WhatsApp is secure for 340 million of its users? Weather their data is safe or whether they should worry about the encroachment of privacy by this foreign tech company?

First to understand is that the right to privacy which is deemed to be the fundamental right by the supreme court is not an absolute right. To every citizen of India who enjoys the right to privacy as guaranteed by the constitution has limitation to it by law and within reasons. But here the thing is to stress upon is that the limitations on the right to privacy is only limited to the state and central authorities. Being a subsidiary to a global conglomerate, WhatsApp does not have the same rights to limitations on privacy and thus has to comply with the privacy laws in respect enforced by the government.

So why the sudden change in the privacy policy in the south Asian region of India and not in the rest of the areas of their operations? It is due to the stringent laws of the lands and sanctions in recent events by the parent company of WhatsApp. As in Europe the laws regarding to privacy are very strict and Facebook has to learn that the hard way in amounting to millions of euros in sanctions. And in India as compared to the foreign laws regarding privacy, it provides leeway and loopholes to dictate their terms as regard to data.

WhatsApp in their official statement assuring their audience in India stated and emphasized on the fact that the data of the public is safe and end to end encrypted going further a step stating that the data shared in the form of cookies will be for the sole purpose of endorsing new businesses and the new feature of shopping and payments in the app which has nothing to do with the data in respect of messages, contacts and call logs.

The current status of this policy seemed skeptical in the first look to the people which led to a mass exodus from the app and to new social platforms such as telegram and signal. The question still stands that what makes the company so sure that it would be no different that the fakebook’s scandal of data breach. How to have faith when the trust in yet to be restored in the social media platforms in regard to data protection and privacy.

With this example the people need to be made aware of their rights about privacy and a demand of stringent laws in the matter of personal data protection until the people can have faith again in the social media companies to express themselves freely once again without the fear of being seen, observed, or watched.