The WhatsApp-Facebook case will determine India’s online privacy laws

Source – hindustantimes.com

There is no guaranteed right to privacy enshrined in the Indian constitution. However, in many judgements over several years, several legal luminaries have interpreted Article 21 – the right to life and liberty as giving rise to a somewhat limited right to privacy. There are a number of restrictions to a right to privacy, mostly articulated through interpretations of various judgements of the Supreme Court. It is in light of this, that the ongoing case in the Supreme Court challenging the messaging application WhatsApp’s privacy policy becomes important.

This is primarily because the right to privacy is a lot more complicated when it is transposed from offline life to an online universe; where corporations not based in India are used widely by Indians for communication, knowledge dissemination, etc. Important questions that need to be asked are who has access to all our tweets and Facebook posts? Who has access to private photographs shared only with family on a WhatsApp group? The current case in the Supreme Court essentially deals with these changes in the privacy policy on WhatsApp. The petitioners contend that WhatsApp had a far more stringent privacy policy before being acquired by Facebook in 2014. Now, both content and metadata of users can be accessed by Facebook. This change is significant because in theory, data collected by Facebook can be used for tracking and monitoring of users very easily. Since the social media giant already collects a lot of other data including location, ‘likes’, friends, etc; giving it more access to other private details of users’ lives could be dangerous.

India’s first regulation for ‘data privacy’ came through the Information Technology Act of 2000. This law deals with compensation for negligence in implementing and maintaining reasonable security practices and procedures for sensitive personal data or information; and provides punishment for disclosure of information without the information provider’s consent. In the case of privacy concerns regarding the unique identity scheme or Aadhaar database, the attorney general had argued in the Supreme Court that privacy is not a fundamental right guaranteed to Indian citizens; and therefore collecting and storing biometrics cannot be a violation of such a right. This case is still underway and has been referred to a larger bench of the Supreme Court.

In light of the complicated jurisprudence surrounding the right to privacy, the WhatsApp case takes on an important hue. The judgement in the case could determine the way ahead for privacy – both online and offline – in India.