The Telegraph
Saturday , July 22 , 2017

Govt bats for privacy in WhatsApp case

New Delhi, July 21: The Centre today batted for citizens' right to privacy in a case relating to data-sharing by WhatsApp, appearing to contradict its stand in a case against the Aadhaar scheme's constitutionality where the government has denied that any such right exists.

Additional solicitor-general P.S. Narasimha told the Supreme Court that private social media platforms like WhatsApp and Facebook cannot share subscriber data as these are too "intimate" to an "individual's personality".

Any sharing of such data would therefore violate Article 21 of the Constitution that guarantees a citizen the right to life and personal liberty, Narasimha told a five-judge constitution bench.

Earlier, the Centre had argued before a nine-judge constitution bench that citizens enjoy no right to privacy under Article 21, as claimed by petitioners who have challenged the Aadhaar scheme citing the risk of citizens' biometric data getting leaked.

"My personal data is intimate to me. It is an integral part of my (an individual's) right to lead a life with dignity," Narasimha told the bench of Justices Dipak Misra, A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M. Shantanagoudar today.

"If there is any contractual obligation between the individual and the service provider impinging on an individual's right, the State will have to intervene and regulate the sharing of such data (which are) an integral part of an individual's personality under Article 21."

Narasimha said the government would soon issue regulations to ensure that private social media operators did not share subscribers' personal data without their consent.

Delhi law students Karmanya Singh Sareen and Shreya Sethi had petitioned the court alleging WhatsApp's decision to share all its subscriber data with Facebook violated the privacy of its 160 million Indian users.

The bench appeared unconvinced by senior lawyer and WhatsApp counsel Kapil Sibal's argument that the petition was not maintainable since only two out of the messaging service's millions of subscribers had challenged the data-sharing.

"When you are facilitating for x, y or z, you cannot impose arbitrary conditions (on your clientele). Data protection is a requirement; the nitty-gritty can't be worked out by the court. The government can do this," Justice Misra said.

Sibal cited how WhatsApp was providing free telephony along with voice, messaging and data services but Justice Sikri said the service could not be called free as it required the user to consume Internet data.

Sibal argued that the subscriber data was not being shared with a third party, since Facebook had bought WhatsApp. He complained that several other platforms like Google and Yahoo too shared subscriber data but the petitioners had chosen to assail only WhatsApp.

Senior lawyers Arvind Datar and Sidharth Luthra, appearing for Facebook, told the court that taxi-hailing service Uber too shared subscriber data but faced no criticism.

Justice Misra, however, was sceptical when Sibal argued that a case of violation of a fundamental right could not be brought against WhatsApp because it was a private entity.

"When the issue relates to a private service provider of this magnitude, why can't he come within the net of public duty? He is not a non-state actor," Justice Misra observed, suggesting WhatsApp was discharging a public function.

He added: "Uber is a taxi operator. That really can't be compared or equated with a service provider of the present nature (WhatsApp)."

Sibal cautioned that by entertaining the petition, the court was "opening a Pandora's box and you will not be able to control it".

But Justice Misra said: "You (WhatsApp) can't impose conditions which are against my rights. You can't control my choice."

Senior lawyer Harish Salve, appearing for the petitioners, said the data-sharing flouted citizens' right to privacy. The next hearing is on September 6.

Last September 23, Delhi High Court had ruled that WhatsApp should delete all the personal data collected from subscribers till September 25 last year but was free to share with Facebook any data collated after that date.

The idea was to give subscribers a window to withdraw from the service if they were against their data being shared with Facebook.

The high court had also asked the Centre and the telecom regulator to examine the feasibility of bringing messaging services like WhatsApp under a regulatory regime in India.

When the petitioners challenged the judgment, the apex court referred the matter to the five-judge bench.

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