Tension over WhatsApp’s Privacy Policy 2021

Privacy conerns over the recent policy changes made by WhatsApp

Looking at the faultlines:

WhatsApp updated its privacy policy on 4th January,2021. Both,the users and the government have since raised red flag over privacy issues that came with the new updates. WhatsApp, which is a part of Facebook companies has had several run-ins with the government in the past especially over its end-to-end encryption technology. 

What is End-to-end Encryption:

According to WhatsApp end-to-end encryption “ensures only you and the person you’re communicating with can read or listen to what is sent, and nobody in between, not even WhatsApp.”

The case of Facebook Inc v. Union of India lies in the Supreme Court for determination of the extent to which these entities are actually in control of this data and hence if the same can be extracted by the government under section 69 of the Information Technology Act,2000.

This stance of not storing data provides WhatsApp with the status of Intermediary and hence spares them with the sanctions and the liabilities which otherwise they would have been subjected to.

What is an Intermediary?

Defined under section 2(w) of IT Act, 2000, the meaning of intermediaries is that they do not own content and are mere platforms where third-party entities place their content. This particular status prevents them from liability in case anything unlawful activity is noticed on an intermediaries’ platforms. In such instances, the government directs the intermediary concerned to remove the unlawful content within a specified period of time. Only if the intermediary concerned fails to do the same expeditiously or it is found that it has conspired, abetted or aided in the generation of such content, can the government take action against the intermediary itself.

As for the latest regulations passed by MEITY (Ministry of Electronics and Information Technology) on 25th February,2021 the principal of “Due Diligence” is to be observed by the intermediaries. The failure to do the same would disable them to claim section 79(1) (which allows them immunity) of the IT Act,2000 and hence cause them to be subjected penal provisions under both, the IT Act and IPC.

What Change is observed:

There have been no changes in terms of personal messaging and the status quo is maintained when it comes to data sharing, only the recipient and the sender is aware of the contents of the messages and no other. 

The new feature of “WhatsApp Business App”  is cause of anxiety for the user and MEITY alike as the messages you send to a WhatApp Business Account will be subjected to the businesses’ own privacy policy.

The business can share the data with anyone they please and the conversation between the user and the business account will still be considered end-to-end encrypted. WhatsApp on its privacy policy, which I hope is written ironically, says that the status of end-to-end encryption cannot be changed without informing the end consumer. 

These businesses may choose WhatsApp’s parent company, Facebook, to securely store messages and respond to customers. Businesses will be able to use chats they receive for their own marketing purposes, which may include advertising on Facebook. The user will not be automatically informed about the company’s privacy policy and for the same the user will have to contact the company.

In order to retain one’s WhatsApp account information it has been made mandatory to accept  these news terms and conditions and for the same suo motu cognisance has been taken by Competition Commission of India

Action taken against the policy:

The policy changes that came into effect on 08th February,2021. This caused users to either accept the terms and conditions or allows them to opt out. As per the previous privacy policies that came out on 25.08.2016 and 19.12.2019, existing users had an option to choose whether they wanted to share WhatsApp data with Facebook unlike the current scenario.

The 2021 privacy policy update as emphasized by courts and the Government of India, is not merely limited to data protection/ privacy laws but extends to assessing more broadly whether it is in conformity with principles of fairness, public policy and national security considerations.

The CCI, pursuant to the suo motu cognisance, has directed the Director General (‘DG’) to cause an investigation to be made into the matter. The Commission also directed the DG to complete the investigation and submit the investigation report within a period of 60 days from the receipt of this order. 

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 under the Information Technology Act,2000 has also been rolled out on 25th February,2021. This sets to redistribute the social media intermediary though there is still no clarity over its application

WhatsApp’s relevance during COVID-19:

WhatsApp and similar instant messaging services have proved to be of much help during the course of pandemic especially during the period of lockdown.

India is on its way to digitization but is still not quiet there so most of the work in government offices, especially summons and notices, happen physically. This was made impossible due to lockdown.

Keeping this in mind the honourable Supreme Court in July,2020 agreed in principle that serving notices and summons integral to the judicial process and serving them through WhatsApp,Telegram and Emails would be legally valid.

View relating to changes in policies:

These privacy policies in general are like differential policy for users in India and the European Union with respect to acceptance of the updated policy. If you read the updated Privacy policies introduced by WhatsApp, it is not applicable in the European Region, owing to the data protection law (GDPR) in place there.

It is to be noted that we have the Personal Data Protection Bill of 2019, which is pending before the Parliament and it is believed that this bill addresses these concerns arising out of this policy.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Aditi Dixit.

Cases argued by Aditya Pratap can be viewed here.

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