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NEW DELHI: Supreme Court on Tuesday warned popular messaging platform WhatsApp of a complete ban for sharing personal data of users, as it tore into the Mark Zuckerberg-controlled behemoth for exploiting and commercialising the data in violation of privacy rights and dismissing its defence of taking users’ consent as a sham deal where the latter had no cards.Dealing with appeals by WhatsApp, its parent company Meta which also owns Facebook, challenging a NCLAT decision that upheld Competition Commissions finding of abuse of dominant position against the social media giant, a bench of CJI Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi scorched it with admonitions for violating right to privacy of Indian citizens.
“You have complete monopoly in the sector. What is the choice you give to users? The consent to share agreement is like the agreement between the lion and the lamb — either you give consent to share your personal data or you walk out of the WhatsApp service,” said the bench.“We will not allow you to share a single word of the personal data you gather from messages. This must be made clear to you. If you are ready to give an affidavit to undertake this, we will hear you. Otherwise, we will dismiss the appeals,” the CJI warned repeatedly.WhatsApp and Meta through senior advocates Mukul Rohatgi and Amit Sibal sought to argue that the data is shared after obtaining consent from the users and that the messages are encrypted in such a manner that these cannot be accessed by WhatsApp.How can you violate privacy of users like this, SC asks WASC posted the matter for hearing in the WhatsApp case on Feb 9 and asked the ministry of electronics and information technology to also file its response.The hearing was peppered with pithy critical observations from the bench, which said, “There is no question of sharing data. How can you violate the privacy of users like this? You share data with Facebook. Tomorrow Facebook will be sold to another, and you will transfer the entire data.”When Sibal said the data is shared with the consent of users, who are given a choice to opt out, CJI Kant asked, “What do you mean by opt out? What kind of option is given to users? How do poor vegetable vendors or rickshaw pullers or people in the rural areas understand what your terms and conditions are to decide to opt out? The language used in terms and conditions is so cleverly crafted, even some of us (judges) would not understand.”A series of questions followed: “Every such term and condition must be examined from the perspective of a common user in this country. How many users understand the legal obligations you impose upon them? Where is the question of opting out when people do not understand those conditions? Show me from your mobile phone how this opt out condition operates?”The CJI said, “By now, you must have shared the personal data of millions of users… it is a decent way of committing theft of private information. We will not allow it to happen… Otherwise, you opt out of the country and withdraw your services.”Solicitor general Tushar Mehta said, “Our private data, our personal data is not only sold but commercially exploited, making the users mere products.”The CJI said, “That is the point. Selling data is violating the right to privacy, which is so zealously guarded in this country and that data is exploited for purely commercial purposes.”Rohatgi referred to the pending petition by Karmanya Singh challenging the privacy policy of WhatsApp and persuaded the court to tag this issue with that case.But the bench brushed it aside and said, “Our simple query is — ask your domestic help whether she understands your privacy policy? It is not about the educated lot. It is about the majority who do not understand these and can’t fathom its consequences.”Mehta said the choice given to users is either give consent or opt out of the messaging service. Justice Bagchi said what is held against the platform is that the consent it gets is a manufactured one.The CJI said, “We will examine all aspects of this case. In the meantime, we will not allow the privacy of the citizens to be compromised in any manner.” Rohatgi said it would amount to dismissing the appeal even though the law allowed the platforms to be compliant in 18 months, that is by May 2027.When Sibal said WhatsApp services are for free, Justice Bagchi said, “Don’t say free of charge. What are the hidden charges? Every silo of data regarding an individual, irrespective of privacy, has a value. The Digital Personal Data Protection (DPDP) Act only addresses the privacy aspect. We would like to examine what the rent sharing of data is. We are concerned that our behavioural tendencies and trends can be utilised and monetised and thereby, your parent company can leverage it for an advantage in online advertising.”Rohatgi said all over the world, WhatsApp messages are end-to-end encrypted. Justice Bagchi said, “All over the world, I think the judiciaries will have to go into a more intensive and innovative oversight over these companies.“It is not the social service you are providing. You can make legitimate income. But your commercial venture cannot be at the cost of the rights of people of India,” said the CJI.
