WhatsApp Privacy Policy case: LIVE UPDATES from Supreme Court

A Constitution bench of the Supreme Court will decide today if the challenge to WhatsApp's privacy policy needs to be heard right away or deferred in light of the new Personal Data Protection Bill to be introduced in Parliament..Live updates to follow. .Bench assembles..Justice Roy: Today we have AG and SG - what you were saying is there is many a slip between the cup & the lip. Just because bill is proposed to be presented before the parliament.. it could go before a committee for deliberation...Justice Roy: So, in near future it may not be forthcoming - that is th anxiety expressed. If the AG would apprise of the timeline that you reasonably expect that an Act could be coming into force then you could expect to sort of say that we don't proceed...AG: one concern is that, the plenaries in the court will kind of orient a parliamentary debate or public consultation.. it may not. That's one concern. Justice Roy: The hearing was happening September, but as yet...SG: my instructions are specific.. parliament session has started yesterday. It's in two phases. The second phase would start from March 13. My instructions are.. subject to the bill getting approval from the cabinet...SG: It is expected to be presented in the second half of this session..SG: It can't be introduced in this session. Kapil Sibal: Even when the bill is introduced, it may go to the standing committee - and that takes another 2 to 3 months..Sr Adv Sibal: Ultimately, it will become law definitely by July. That's the timeline I can give. SG: We can't assure what happens on the floor..Justice Roy: What Mr. Divan is saying - how far will this timeline have a repercussions. Sr Adv Sibal: My request is this, even if you hear the matter - what will happen? By the time judgment comes, it will stand in the way of the bill already passed..Justice Bose: The parliament may be benefitted by the judicial view.. Sr Adv Sibal: the problem is.. the nature of this legislation is such that it is not ordinary. It has ramifications on investment, freedom of speech, privacy...SG: Your Lordships judicial pronouncement being debated in parliament must always be avoided. That's not right..Sr Adv Mukul Rohatgi: These are debates where there are no specific complaints. The statutory regulations are of 2011, they are not under challenge. There is nothing concrete and specific here..Rohatgi: If it has waited for so long, it can wait for one or two months. Instead of having this clash with the legislature doing one way and court doing another way..SG: In one of the matters, the regulations are also in question.. now the new regime which is yet to come, takes a different view to the regulations..Justice Bose: Why don't you voluntarily undertake.. the intermediaries? Sr Adv Sibal: There are two global regimes. They are saying we'll follow the European regime, they are saying we'll follow the other regime. That's a matter that law will decide..SG: I consciously say, when the bill comes - the intermediaries will challenge it!.Court goes through the 2011 regulations..Sr Adv Sibal: No personal message on WhatsApp can ever be read by anyone, including WhatsApp. Justice Bose: So, what is available? Sibal: We have an entire representation on that..Sr Adv Sibal: The information is only stored in the phone. There's no information with us.Sr Adv Sibal: We only have your phone number and name. Nothing to do with content, personal information..SG: Without consent of user, no intermediaries can share any sensitive information..Sibal: Consent is necessary. It is at the heart of the matter. Rohatgi: If you download WhatsApp, you have to first read the privacy policy. It is not like that fine print..Justice Bose: Can I have access to WhatsApp without agreeing to policy? Sibal: No. Justice Bose: So, what information you have? Sibal: Only name and phone number..Sibal: The law will resolve these issues. There's a separate chapter on consent!.Sibal: There is no reference to consent even in government apps! If you enter into this field, all these issues will be.. The legislation deals with all this..Senior Advocate Sibal differentiates between personal data and sensitive personal data..Court: My understanding is, when you sign on WhatsApp - I agree to all the terms. One of the terms would be that I have no problem making my personal information available in pursuance with a contract with some other body..Sibal: I have to have a contract with the user. Justice Joseph: Take for example, my political views.. are they treated as sensitive personal data? Sibal: WhatsApp doesn't look at it. My Lords, I will not be acting for WhatsApp if they knew my political views. (laughs).Sibal: If he doesn't want any of this, if he's on WhatsApp he'll be fully protected. Sr Adv Divan: Let us record that statement of Mr Sibal right away please. That if you are an WhatsApp, not on Facebook, no information will be shared..Sibal: Please record my statement that if I am on WhatsApp, I'll not get any advertisments..Sibal: Sometimes we have to share the phone number when there is some policy of law...Rohatgi: There are alternate services.. these are all private companies, not State. You can take any service. Sibal: 600 million people are on this service and none of them have complained that my sensitive data is being misused..Sibal: There is no data before Your Lordships..Sr Adv Shyam Divan: Their case is that there is an extant legal regime and they are in compliance with it. That takes care of a huge issue raised yesterday that all of this is a vacuum and we have to wait the Data Protection Law..Divan: We will complete arguments on this side by next Wednesday evening and at the latest by Thursday. If we fail, we'll supplement that with written submissions..Divan: They will have whole of February to argue. There will be more than adequate time..Divan: Way back in 2017, an assurance was extended to the Constitution Bench that the Act will be passed by Diwali as per news reports. Be that as it may, this issue is entirely in the realm of speculation..Divan: The first broad element of this case is data protection. Data in today's world has enormous commercial value - not just individual data but also meta data. The convenience compilation shows the commercial value of metadata..Divan: WhatsApp shares this data with meta. What is the nature of it? Value? All of that we seek to explain..Divan: When WhatsApp introduced the service, they said we are not interested in advertising and we are not going to part with your data to anyone. That was the representation..Divan: The assurance on privacy continued when Meta took over. In 2016, it changed. We want an undertaking that just as you did before the European Data Protection Regime kicked in that we will not share any of the data with Meta..Justice Joseph: If there is a user has permitted them to transfer data, can you come? Divan: The standard with ought to be applied is informed consent and an opt-out option..Court: So you want best of both worlds? You don't want to leave also and you want opt-out also? Divan: We are pre-2016 users and we want to continue on the basis of the assurances you gave..Divan: Opt-out is a basic element of the concept of privacy!.Divan: Our submission is that as far as the fundamental right to privacy is concerned.. there are observations made by this court that privacy has a certain horizontal application as well which means it extends to non-state actors as well.Divan: The conventional way is, the centre can be made a direction. The way it is done in environmental law. Other way is, transnational human rights law..Justice Rastogi: Are your concerns not addressed in the new bill? They've consolidated it to personal data only - no sensitive. They deal with deemed consent also..Justice Rastogi: Are we not supposed to wait for the legislative wisdom? Simultaneously, they are going ahead with the legislation on one side and hearing on another..Sr Adv KV Viswanathan: WhatsApp admits to metadata collection. The bill is only saying that we are aligning your privacy rights with the regulations. Till the bill comes...Bench rises for lunch. Hearing to continue at 2 pm..Hearing resumes..Court: We have deliberated whether to hear or not. We are inclined to hear it out, on caveat. For logistic reasons, by February 20-21st.. Divan: We will finish..Sibal: We have a Maharashtra Constitution Bench starting on 14.. there's no way we can finish. Court: Mr Attorney? AG: There is also Assam. Small concern..Court: They have agreed to complete it by Thursday. You start on 14, 15, 16 and 21, 22 & 23. Sibal: 14 is the Maharashtra Constitution Bench matter, My Lords. Where I have to open...Sibal: Issues are multiple.. we've prepared so much data. There are four separate matters. Court: We were prepared to do it. We didn't want to leave anything.. what do we do then?.Divan: I don't think there's any problem at all. Mr Sibal, I'm sure will arrange his affairs. If the Constitution Bench has said it wants to proceed with the matter, we must proceed..SG: That was fixed more than a month ago.. I can't compare.. it's only a matter of accomodation..Justice Rastogi: Given the time schedule, the whole February will go. Divan: We are saying we will be done by Thursday..Justice Rastogi: After going through the prospective legislation.. we find that whatever submissions made by you people.. to some extent those have been taken care of. SG: If Your Lordships are prima facie of that view, better to wait..Justice Rastogi: After that legislation comes into effect, we can examine the impact and how far they protect your rights and what all rights are unprotected by legislation..Divan: Counsel's convenience ought not to have been mentioned before the court. Sibal: Can't we even mention that there is a constitution bench? I'm sorry, you should not be saying this as counsel..SG: I don't know why my Ld. Friend is so vociferous and vehement for a date.. we generally.. Sr Adv KV Viswanathan: In UK, when a similar situation arose.. pending the GDP.. they undertook that they will not share.. Sibal: Share what!?.Sibal: This is all academic!.Justice Rastogi: You condense your arguments. We cannot keep the whole month in one matter.. At least for me, it's not possible. Divan: We'll condense. Sibal: I'm sorry, it'll take time for me..Justice Rastogi: I don't have patience for one matter to be going on for months together. I have a different temperament of working..Sibal: We are a bit slow.. My Lords this will effect every intermediary in the country including the government and it has huge ramifications. Please appreciate.Sibal: We have taken hours and hours and hours to understand.. ourselves. Datar: This matter first came up.. it was referred to Sri Krishna committee, the joint parliamentary committee - the first bill came. There were no less than 80 hearings before the latter.Datar: There are huge issues of maintainability at the outset. SG: Except that Mr Divan wants to start, there is no reason to start..Justice Joseph to Sr Adv Divan: I would have rather prefered to start, I agree with you.. but look at where are we reaching? This is not a simple matter. It'll spill over various issues. The counsel should not say they were not given time..Divan: Please take up this IA.. please go directly to Page 40.. I'll just state my point, Your Lordships may pass an appropriate order. The policy assailed is a 2016 policy but it undergoes revisions from time to time. Divan reads out prayer..Divan: The original business policy was either you adhere to this new policy or we are discontinuing you from using WhatsApp. On that element, there has been a change. They are saying we won't throw you out. However, they keep sending a message.Divan: I'm making two points- 1. WhatsApp found itself in a similar situation in Europe. At that point, they gave an undertaking that we will not share WhatsApp data with Facebook. If they want the advantage of the new act, until then, they ought to give such an undertaking..Divan: 2. The government of India itself has filed affidavits against the 2021 policy. 3. I will take you through some points where the European requirements are not adhered to in India..Divan reads out of Europe's privacy policy..Sibal: There is no point in arguing for the interlocutory relief.. this will be final relief.. We have already told the government that WhatsApp will not limit it's functionality and will continue to display the update..Rohatgi: In other words, if you don't agree to our policy, you will go out of our system.. but we have not removed any person till the PDP Bill. The govt has agreed to this..Justice Joseph: If we indicate today in the order that this is the stand of WhatsApp, accepted by the government of India, the bill is in whatever stage it is.. that this is given full publicity..Justice Joseph: What is the effect of this? They appear to hold out that they will not compel you in a manner that you will be forced to leave. You can continue with WhatsApp - whatever is the agreement you have already entered into..Justice Joseph: Wife publicity will be given to it. All users will be informed.. that you don't have to actually give this consent as it were which will involve giving up your rights..Justice Joseph: What will happen.. the previous contract read with the extant rules will apply. So that, if they do something contrary, you can take action..Divan: There is a dramatic difference in different jurisdictions and in India.. Secondly, they gave an undertaking in Europe that they will not share my data with Facebook entities..Divan seeks a similar undertaking in this case..Court: As far as 2021 policy is considered, those who have not signed will not be bound by privacy terms. If they have away your rights.. you'll have a right of action under the Rules..Court: As far as 2021 policy is considered, those who have not signed will not be bound by privacy terms. If they have away your rights.. you'll have a right of action under the Rules..Sibal: The bill before you deliberately does not treat India on the same standard as EU. Datar: We will also show that the EU suffers. Sibal: I have said they will not be forced till PDP Bill..Justice Joseph: What are you sharing? Sibal: We have a presentation to show you. Datar: The undercurrent of the issue is, don't treat India different that Europe. This actually reduces efficiency of WhatsApp..Datar: The parliamentary committee considered the EU regime. US, UK, Singapore.. all have got the same thing. The petitioners don't know what they are asking for..Datar explains how data in WhatsApp Business is shared with third parties. Nothing in Puttuswamy is violated by WhatsApp. Except for phone number, nothing is shared..Rohatgi: WhatsApp business is different. It's a separate app..Justice Joseph: We will say they should give wide publicity. Actually, what is the loss caused to you. You don't pay anything..Petitioners: Now there is a well-recognised idea that the cost of all these apps is a privacy loss. Justice Joseph: Are they out here to do charity? We are not brushing aside your point. We are asking for IA..Justice Ravikumar: What is the objectionable data that has been shared? Petitioners: WhatsApp can share your location. Datar: It is end to end encrypted!.Court: We will refer to the communication, the stand taken.. are you saying you are not bombarding? Sibal: We are not doing it daily. We do it periodically..AG: I've seen the reply of the government, they ask WhatsApp to undertake a certain course of action.. if they don't, we'll follow it up..Sr Adv Luthra: We can send a notification to those who have not accepted..Court deliberates on how to give wide publicity..okay, we will post it on 10 April for directions..Sibal: In January, we gave a front page ad. That same ad can be given in all prominent national dailies..Order: The respondents, in particular the AG and SG, again brought to our notice that a digital personal data protection bill 2022 is on the anvil of being placed before the parliament..Order: It is their contention that the bill will deal with the aspects that are subject matter of petitions before this court as it is prayed that the case may not be taken up..Order: This request is echoed by senior counsel for respondents. This is, however, stoutly contested by petitioners..Order: They would point out that what is being touted as the reason for adjournment is the prospect of a bill going through stages and finally emerging as well and it should not detain this court..Order: Divan would point out that arguments would be addressed in a time bound manner as the petitioners would conclude their arguments at the latest by 9 February. He would compain that this matter was originally taken up in 2017...Order: .. the very same ground was pointed out for getting the matter adjourned. We are today in 2023, he points out..Order: Divan also takes us through the merits in that he drew our attention to the fact that the stand taken by WhatsApp in particular in regard to customers in Europe stands in stark contrast with th stand in India without any warrant.Order: He prays that this matter may be heard. Noticing the bill is being considered and also the arguments may not conclude, we are of the view that the matter need not be considered immediately..Order: At this juncture Divan would then press for interim orders to be passed. He took us through the IA and prayed that the relief are granted..Order: Sibal for WhatsApp pointed out letter dated 22 05 2021 addressed to the governmental authority wherein our attention is drawn to the following portion. The Ld counsel for the petitioners would press for an interim order.Order: to the effect that even those persons who may have agreed to the terms of privacy declared by WhatsApp, either in terms of the 2016 or 2021 policy, should have the right to opt-put. This means, according to them, that while...Order: ..they should be permitted to use WhatsApp, their agreement to allow the use of data should not stand in the way of their wriggling out of their obligation under which WhatsApp would have the right to share their data..Order: We would think that that may not be justified at this stage in granting the relief as sought for by the petitioner in the IA, the matter may require consideration of the issues which arise..Order: Apart from recording the stand of WhatsApp that they have given the undertaking, and also that we should issue appropriate directions for causing wide publicity to the said stand of WhatsApp for the benefit of those consumers...Order: .. who may not have agreed to the terms of the privacy policy of 2021. Accordingly, the application is disposed of as follows:.Order: We also record the statement of the senior counsel for WhatsApp that they will abide by the letter which we have extracted till the next date..Order: We further direct WhatsApp to cause publicity to this aspect for the benefit of customers of WhatsApp by giving an advertisment in five newspapers on two occassions. Ads shall be full page..Order: The ad will necessary incorporate the stand taken in the letter..Bench rises. Case to be heard again on April 11.

WhatsApp Privacy Policy case: LIVE UPDATES from Supreme Court

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