Whatsapp with Privacy and How Not to Deal with Frivolous PILs

whatsapp_logo_1A few weeks ago, two millennial babalog filed a public interest litigation (PIL) before the Delhi High Court against Whatsapp’s new privacy policy which informed users that their data would now be shared with Facebook unless users opted out. Facebook had acquired Whatsapp for $19 billion dollars two years ago and it was only a matter of time before the company began to harvest the goldmine of data with Whatsapp.  Rather than dismiss the PIL in limine the Court admitted the PIL and gave it a patient hearing before disposing it with directions to Whatsapp to delete all information of users who opted out before September 25 and to not share information, from before September 25, of those users who continued with Whatsapp.

PILs by their definition are usually filed in “public interest” against the state. The problem with this particular PIL, is that it was aimed against a private company and is essentially a grievance against the change of terms of a private contract between a service provider and its users. When you, the user, download and install a service like Whatsapp on a smartphone, you enter into a contract with the service provider. In the case of Whatsapp, the contract is not even governed by the Indian Contracts Act, 1872. Instead, Whatsapp’s terms of conditions are governed by the laws of the great state of California, one of the fifty states that constitute the United States of America. In fact that’s the case with most online service providers like Google and Facebook. These contracts usually require users to agree to sue before the court of choice mentioned in the contract. In the case of Whatsapp, a contractual clause allows Indian users to sue “exclusively in the United States District Court for the Northern District of California or a state court located in San Mateo County in California”.

Thus the preliminary question before the Delhi High Court in this PIL was whether private contracts could be subject to such PILs?

In its judgment of September 23 the Delhi High Court begins by arguing against any judicial intervention into such contracts. The courts points out that the users of “WhatsApp” are “parties to a private contract and the users of “WhatsApp” having voluntarily opted to avail the services of the said Application, are bound by the terms of service offered by [Whatsapp]”. Making reference to the voluntary nature of the contract, the court states “it appears to us that it is not open to the users now to contend that “WhatsApp” shall be compelled to continue the same terms of service.” The court also takes “note of the fact that under the Privacy Policy of “WhatsApp”, the users are given an option to delete their “WhatsApp” account at any time, in which event, the information of the users would be deleted from the servers of “WhatsApp” and that “it is always open to the existing users of “WhatsApp” who do not want their information to be shared with “Facebook”, to opt for deletion of their account.”

After tackling the contractual issue, the Court moves onto the issue of the right to privacy.   Even on this point, the Court rebuffs the petitioner’s argument that privacy is a fundamental right. In pertinent part, the court states “the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided” as it is pending before the Supreme Court in the series of sub-judice petitions filed against the aadhar scheme.

Given there was no contractual or statutory rights were being violated, the court concedes that it has no jurisdiction to admit the PIL, stating that “it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India”.

Yet within two paragraphs, of the above statement admitting that it lacks jurisdiction, the court makes a leap of logic by passing three orders – the first restraining Whatsapp from sharing with Facebook the information of users who deleted their account, the second restraining Whatsapp from sharing information, from before September 25, of those users who continued with Whatsapp and the third, directions to the government to consider a regulatory framework for services such as Whatsapp.

The most obvious fallacy with these orders is that the court cannot pass any orders after it has conceded the lack of jurisdiction over the subject matter of the PIL. But in reality, the Court’s order has little effect because Whatsapp already provides for both options. Its new privacy policy, allows users to delete all existing data shared with Whatsapp by simply deleting their accounts. The new policy also informs users that they “can choose not to have your WhatsApp account information shared with Facebook to improve your Facebook ads and products experiences.” In other words, the first two orders of the Court are already covered under the terms of Whatsapp’s policy. The third order, to consider a privacy framework, is a general direction which is not binding on the government.  However the media spin given to this otherwise irrelevant judgment portrays the case as path breaking.

So why then did the High Court pass such orders and spend all this time and effort to write a 15 page judgment? Was it to save face for the petitioners? Is this how overworked High Courts should be spending their time dealing with frivolous litigation? More worryingly, has the High Court now set a precedent for PILs to be admitted against private companies on issues pertaining to privacy.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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