Justice Prathiba Singh of Delhi High Court on Friday recused from hearing the petition challenging the updated privacy policy of messaging giant WhatsApp.
"I am not going to hear this case. I was, in any case, not going to hear it," said Justice Singh, according to Bar & Bench.
Additional Solicitor General Chetan Sharma urged the judge not to recuse. He said there can’t be a better person to hear this matter and it's a very important question of law. But Justice Singh said that she is sending it to another judge.
Senior Advocate Mukul Rohatgi appearing for WhatsApp asked for the matter to be listed before a single-judge Bench.
Justice Singh ordered that the matter be placed before another single-judge Bench subject to orders of the Chief Justice. She suggested the case to be treated as a PIL (public interest litigation). The matter will now be heard by another bench on Monday, January 18, 2021.
The petition, preferred by Advocate Chaitanya Rohilla, has claimed that the new privacy policy of WhatsApp absolutely violates the Right to Privacy guaranteed under Part III of the Constitution of India.
“The primary contention of the petitioner is that new policy ‘virtually gives a 360-degree profile into a person's online activity’, without any ‘government oversight’, and ‘takes away the choice’ of a user to not share their data with other Facebook-owned apps and third-party apps,” said Salman Waris, managing partner at technology law firm TechLegis Advocates and Solicitors.
The petition also highlights that there is no clarity on the extent to which data will be shared. It raises questions about what will be done with the sensitive data of users. It says under the new terms and conditions, WhatsApp would be sharing transaction data, mobile device information, IP addresses, and other data on how users interact with businesses on WhatsApp and with Facebook group companies, including Instagram.
“The petition alleges that ‘WhatsApp has made a mockery out of our fundamental right to privacy while discharging a public function in India, besides jeopardizing the National Security of the country by sharing, transmitting and storing the users data in some another country and that data, in turn, will be governed by the laws of that foreign country’,” said Waris. “To prevent this grave violation the petition has sought a direction upon the Central Government to exercise of its powers under the Information Technology Act and ensure that WhatsApp does not share any data of its users with any third party or Facebook and its companies.”
WhatsApp recently said that updated its privacy policy and terms of service to better integrate with other products and services offered by its parent company Facebook. The most prominent changes deal with how WhatsApp shares information with Facebook and its subsidiaries. The instant messaging app can now share phone numbers and transaction data with Facebook. The aim is to also promote safety.
“Privacy policy and terms updates are common in the tech industry, as you know. Respect for your privacy is coded into our DNA. Since we started WhatsApp, we’ve built our services with a set of strong privacy principles in mind,” a WhatsApp spokesperson said recently.
The privacy policy and terms come into effect on February 8. Experts said this means that if a user won’t accept the new changes, they will lose access to the app or may not be able to use all the features.
India is the biggest user base for Facebook, with around 328 million users, and WhatsApp has 400 million users here, also the highest. Since Facebook’s acquisition of WhatsApp, one had the option to opt-out of sharing activity data on WhatsApp from Facebook. Now that option is no longer going to be available. Experts said WhatsApp could have offered users an option to opt-out of certain services if they refused to share data rather than making it a compulsion.
“The revised terms and conditions and modified Privacy Policy clearly appear as an abuse of WhatsApp and Facebook’s dominant position in the market,” said Waris of TechLegis. ”The linking of large data sets across multiple platforms certainly puts users’ data and privacy rights in jeopardy.”
In continuation of its tirade against WhatsApp for its new privacy policy, the Confederation of All India Traders (CAIT) which represents 70 million traders, said it may go to the court if the government does not take any action against WhatsApp. It urged the government for technical audit of WhatsApp, Facebook and Instagram.
CAIT has sent another communication to Union IT Minister Ravi Shankar Prasad related to this matter. It accused WhatsApp, Facebook and its entity Instagram guilty in severe breach of privacy and destroying the trust of more than 400 million users in India. It alleged one single parent company (Facebook) has left no stone unturned in compromising the security, privacy, independence and integrity of the whole nation by sharing user information amongst each other and selling to third parties. It alleged WhatsApp is obtaining forcible consent of users which is unconstitutional, violation of the law and poses a threat to national security.
“After gaining the trust of people they have forgotten everything and in broad daylight annihilating the faith and confidence reposed by millions of users. After failing in its attempt in European Union to continue this policy, Facebook has now made India as a new target,” said CAIT National President B C Bhartia and Secretary General Praveen Khandelwal. “It’s a case of daylight robbery of data in India and trading community of the Country will not lag behind in setting the things right, come what may.”
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