Privacy policy on hold till data protection bill comes into force: WhatsApp to Delhi HC

WhatsApp LLC told the Delhi High Court on Friday (July 9) that till the data protection bill comes into force, it will not compel users to opt for its new privacy policy as it has been put on hold and will implement it “if Parliament allows it”.

WhatsApp clarified before bench of Chief justice D N Patel and Justice Jyoti Singh that it would not limit the functionality for users who are not opting for new privacy policy in the meantime.

Appearing for the instant messaging platform, Senior Advocate Harish Salve said, “We voluntarily agreed to put it (the policy) on hold… We will not compel people to accept.”

Salve said that WhatsApp would nonetheless continue to display the update to its users.

In response to Salve’s submission, the court observed that even though the implementation had been put on hold, the policy still continued to exist.

“You are not implementing it but the policy is with you and any day it can come,” the court said.

Salve reiterated that the approach would be maintained till the data protection bill becomes the law.

“Commitment is that I will do nothing till the Parliament’s law comes in. If Parliament allows it, I will have it. If it doesn’t, bad luck… I’ve taken it off till the Parliament makes a law. Either we fit in or we don’t,” Salve said.

The Personal Data Protection Bill seeks to regulate the use of individual’s data by the government and private companies. The Joint Committee of Parliament examining the Bill has been given an extension till the monsoon session to submit its report.

The court was hearing the appeals of Facebook and its firm WhatsApp against the single-judge order refusing to stop the competition regulator CCI”s order directing a probe into WhatsApp’s new privacy policy.

Last month, an application was moved by WhatsApp for interim stay on the probe.

Salve argued that since the genesis of the probe -the privacy policy – has been stalled for now, the inquiry into the same by the Competition Commission of India (CCI) had become academic.

“Objectionable part was ‘take it or leave it’. For present, ‘take it or leave it’ is something we are not doing. Opt in, opt out is not there. Everybody is using,” he said.

He also urged the court to grant WhatsApp time till the end of July to respond to the questionnaire sent by CCI to it in relation to the inquiry.

Salve informed the court that on June 4, WhatsApp received a letter from CCI, seeking information directly in relation to the issue of privacy which is being looked into by the Supreme Court and the high court.

“Please see the questions — month-wise number of downloads, number of active users, number of users left… number of users who opted out…80-90% is directly what your lordship is hearing,” he said.

Salve added that even the central government communication sent to it in May, asking it to withdraw the policy, established that the privacy policy was already a subject matter of hearing before the Supreme court and the high court.

Senior Advocate Mukul Rohatgi, appearing for Facebook, submitted that the CCI was jumping the gun by initiating a probe into the privacy policy when a challenge to the same was pending before two higher courts.

Additional Solicitor General Aman Lekhi, appearing for CCI, said that as long as the privacy policy existed, its implications would continue to persist.

He added that the matter before CCI was only at the stage of inquiry and “nothing is going to happen even if steps are taken”.

“It is not as if by filing reply anything detrimental will happen,” Lekhi said.

Advocate Gurkaran Singh submitted before the court that Prachi Kohli, who was an informant before CCI, sought to intervene in the appeals.

The court proceeded to adjourn the matter till July 30 after it recorded that CCI’s affidavit was not on record.

The single judge on April 22 said that he saw no merit in the petitions of Facebook and WhatsApp to interdict the investigation directed by the CCI.

He opined that though it would have been “prudent” for the CCI to await the outcome of petitions in the Supreme Court and the Delhi High Court against WhatsApp”s new privacy policy, not doing so would not make the regulator’s order “perverse” or “wanting of jurisdiction”.

In the petition challenging WhatsApp’s privacy policy, Central government earlier told the court that social messaging platform was trying to force its users to consent to the new privacy policy before the data protection bill becomes the law and is obtaining “trick consent”.

It urged the high court to restrain WhatsApp from implementing its new privacy policy and terms of service.