Delhi High Court Defers Hearing Till September On Pleas Against WhatsApp Privacy Policy

The Delhi High Court on Wednesday deferred a hearing till September on a batch of petitions challenging the 2021 privacy policy of the instant messaging application WhatsApp.

A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad was informed by the parties that similar issues were pending consideration before the Supreme Court.

The high court also adjourned on similar grounds hearing till September on pleas by Facebook and WhatsApp challenging the new IT rules for social media intermediaries requiring the messaging app to “trace” chats and make provisions to identify the first originator of the information.

Chaitanya Rohilla, who was the first to challenge the privacy policy, has contended before the high court that the updated privacy policy violates users' right to privacy under the Constitution and emphasised that they can either accept it or exit the app, but they cannot opt not to share their data with other Facebook-owned or third party apps.

The plea has claimed that the new privacy policy of WhatsApp allowed full access to a user's online activity without there being any supervision by the government.

In its response, WhatsApp has claimed that the new policy did not affect a user's privacy as personal messages continued to be protected by end-to-end encryption. WhatsApp has also challenged the maintainability of the writ petitions against it.

Last year, the instant messaging platform also told the court 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.

The Personal Data Protection Bill seeks to regulate the use of individual 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 central government, on the other hand, has contended that the platform was trying to force its users to consent to the new privacy policy before the data protection bill becomes the law and was obtaining "trick consent" and urged the court to restrain WhatsApp from implementing its new privacy policy.

The Centre has also defended the legal validity of its new IT rule requiring messaging apps to “trace” the first originator of the information, saying that the law empowers it to expect such entities to create safe cyberspace and counter “illegal content” either themselves or by assisting the law enforcement agencies.

It has told the court that Section 87 of the Information Technology Act gave it the power to formulate Rule 4(2) of the Intermediary Rules -- which mandates a significant social media intermediary to enable the identification of the first originator of information—in “legitimate state interest” of curbing the menace of fake news and offences concerning national security and public order as well as women and children.