How is WhatsApp treating Indian users differently as pointed out by the govt?

New Delhi: It is a cause of concern that WhatsApp is treating Indian and European users differently when it comes to privacy, the central government told the Delhi High Court on Monday. Meanwhile, WhatsApp told the court that the government of India has sought certain clarification regarding its new privacy policy and it is responding to the communication.

During the hearing of a petition challenging the new privacy policy of WhatsApp, Additional Solicitor General Chetan Sharma told the court that the government has sent a whole list of questions to WhatsApp.

“Privacy policy offered by WhatsApp to its European users specifically prohibits the use of any information shared with a Facebook company…this clause is not present in the privacy policy offered to Indians and Indian citizens who form a very very substantial part of WhatsApp’s userbase,” said Sharma, adding that this differential treatment is “certainly a cause of concern”.

Sharma added the government is also concerned about the way in which the Indian users “have been subjected to these changes rather unilaterally by not providing Indian users the ability to opt out…”

He further argued that WhatsApp prima facie seems to be treating the users with an all-or-nothing approach. “This leverages the social significance of WhatsApp to force users into a bargain which may infringe on the interest in relation to information privacy and information security,” he added.

Sharma also said that the issue obviously was between two private parties. However he added, “but the scope and expanse of WhatsApp makes it a germane ground that reasonable and cogent policies are put in place”.

WhatsApp on Monday told the court that it was responding to the communication sent by the government. “We are responding to it. This is all misinformation,” submitted Senior Advocate Kapil Sibal, who represents WhatsApp.

Justice Sanjeev Sachdeva on Monday deferred hearing of the matter to March 1 to allow the government to make a decision in the meantime. The court earlier observed that WhatsApp services are voluntary and a user can choose not to use them.

“It is not something which makes it mandatory for you to download…,” observed the court, adding other applications also have similar terms and conditions.

It was hearing a petition filed by a lawyer Chaitanya Rohilla, through advocate Manohar Lal. The petition seeks an injunction with immediate effect against the updated privacy policy and also wants the Centre to be directed to lay down guidelines to ensure that WhatsApp does not share any data of its users with any third party or Facebook and its companies for any purpose.

The users earlier were mandatorily required to agree to the new policy by February 8 to continue using WhatsApp, but now the implementation has been deferred to May 15. Following the announcement of the updated policy, many users and privacy activists had raised concerns regarding it, particularly about the sharing of information between the messaging app and other Facebook companies.

Alleging that WhatsApp changed its privacy policy in “most arbitrary manner” and has made it compulsory for its users, the petition before the court contends that the latest policy violates the right to privacy of citizens of India. “WhatsApp has included certain clauses in the New Policy which directly hit the fundamental rights of the individual,” the plea reads, adding the “this type of arbitrary behaviour and browbeating beating cannot be accepted in a democracy”.

It further contends that WhatsApp’s privacy policy essentially takes away the choice users had until now to not share their data with other Facebook-owned and third-party apps. “WhatsApp through the policy is clearly trying to share its users’ data to the parent company and other companies which will eventually use that data to serve their vested interests,” the petition reads, adding, “it virtually gives a 360-degree profile into a person’s online activity”.

Under Article 226, the plea argues, a writ can be issued to “any person or authority” including the private bodies and also for the enforcement of fundamental rights or “for any other purpose”. WhatsApp has become an important mode of communication among the citizens of India and is also being used to aid multiple Governmental functions as well, it contends further.

The petition also states that the updated privacy policy will not be applicable “for the European Region owing to the data protection laws in place there” and contends that it was being enforced in India “in most monopolistic way” in the absence of any comprehensive law. It seeks guidelines or directions to ensure that any change in privacy policy by WhatsApp is carried out strictly in accordance with the fundamental rights guaranteed under the constitution.