In an affidavit filed by the Facebook-owned company WhatsApp, it submitted that it is not forcing its users to accept the 2021 update in its privacy policy as it is not mandatory. This statement came in reply to a petition filed before the Delhi High Court which challenged WhatsApp’s 2021 privacy policy update as being violative of Article 21 of the Constitution as it does not provide its users with the option to opt-out of the policy.
WhatsApp stated that its users are given the liberty to either accept the 2021 policy update or to not do so and also have the option to opt-out and delete their account at any time.
WhatsApp submitted that “users were not previously given the option to opt-out of WhatsApp's privacy policies if they wanted to use the WhatsApp service.”
The Facebook-owned company has averred in its affidavit that “it is under no legal obligation to provide such ‘opt-outs’ and further, the company doesn't have any obligation to provide its services to such users, who do not consent to their terms. “
While stating that such practices are common for online platforms, the company submitted that it was explicitly asking the consent of its users by offering them the liberty to choose and control unlike other online platforms wherein the users’ consent is implied by their continued use of service. In that respect, the affidavit also emphasized the point that even though such policy practices were being followed by several other online platforms, yet the petitioners were singling out WhatsApp.
The company denied the petitioner’s allegations of disparity with European users. WhatsApp submitted that the 2021policy update applies, subject to certain regional laws and rules, to all its users across the globe. The disparity in the policy applicable to users from the ‘European Region’ is due to the different rules and obligations applicable in that Region.
The company submitted that such interference in its privacy policy update would cripple the internet-based applications and website industry.
The affidavit urged the Delhi High Court to dismiss the petition challenging its privacy policy. Citing companies such as Google, Microsoft, Zoom, Truecaller, and others, the company pointed out other online platforms that have retained their right to collect their user’s data.
Even though the Parliament has been deliberating over the Personal Data Protection Bill 2019 since January 2020, the Affidavit urged the High Court not to establish new data protection rights as the same would be “contrary to the principle of judicial restraint.”
BACKGROUND:
A petition challenging the privacy policy of messaging app WhatsApp was filed before the Delhi High Court. The petition had been filed by one Dr. Seema Singh through Advocate Meghana and Advocate Vikram Singh, alleging that the WhatsApp privacy policy update of 2021 does not provide its users with an option to protect their data by opting out of their policy and hence is violative of the fundamental right to privacy under Article 21 of the Constitution. The petition sought directions to the Union of India to formulate Social Media Intermediary Guidelines for safeguarding the privacy of citizens.
Earlier, responding to a Public Interest Litigation filed, the Delhi High Court had restrained WhatsApp from implementing its new terms of service and privacy policy, which were released on January 4, 2021, pending adjudication on the case by the court.
Last week, a division bench of Chief Justice D.N Patel and Justice Jasmeet Singh issued notice to the Centre and social media platforms Facebook and WhatsApp seeking their response on a Public Interest Litigation (PIL) petition filed by one Harsha Gupta through Advocates Vivek Sood and Dhruv Gupta challenging the new privacy policy of WhatsApp. The petition challenges WhatsApp’s general terms of service and Business terms of service as being violative of Article 21 of the Constitution.
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