Satya Prakash
Tribune News Service
New Delhi, July 21
Having taken a stand before a nine-Judge Constitution Bench that right to privacy is not a fundamental right, the Centre today contradicted itself by telling another Constitution Bench hearing the WhatsApp privacy matter that personal data was an extension of one’s personality and hence a part of fundamental right to life.“Data of a user is connected to his personality and it is an integral part of Article 21 (Fundamental Right to Life and Liberty),” Additional Solicitor General PS Narasimha told a five-Judge Bench headed by Justice Dipak Misra, which is examining issues arising out of the 2016 privacy policy of WhatsApp.“If any contractual obligation impinges upon that, it will have ramifications. We will come out with regulations (on data protection),” Narasimha said.On the face of it, the Centre’s stand in the WhatsApp case appears to be contrary to its categorical statement before the nine-Judge Constitution Bench headed by Chief Justice of India JS Khehar that right to privacy was not a fundamental right.The Bench posted the matter for further hearing on September 6 after senior counsel Kapil Sibal, representing WhatsApp, pointed out that the verdict of the nine-Judge Bench on right to privacy would have a bearing on the matter and it should be heard only after the judgment was pronounced by the larger Bench.Petitioners Karmanya Singh Sareen and Shreya Sethi had alleged WhatsApp’s decision to share all its subscribers’ data with Facebook impinged on privacy of 160 million Indian users.The Delhi High Court had last year ruled that WhatsApp should delete all data in its possession till September 25, 2016, but said the company was free to share the data with Facebook post September 25, 2016, thus enabling subscribers to voluntarily withdraw from the service if they were not keen on sharing their data with Facebook.The high court had asked the Centre and TRAI to examine the feasibility of bringing the messaging services under a regulatory regime in India. The petitioners challenged the HC verdict in the top court where the issue got referred to a Constitution Bench.
WhatsApp, FB can’t share ‘intimate’ data: Govt to SC
PETITION IN COURT Centre’s stand contradicts its position in privacy and Aadhaar cases
From page 1 NEWDELHI: Social media platforms such as WhatsApp and Facebook cannot share subscriber data because these are too intimate, the government said in the Supreme Court on Friday.
The government declared its stand before a bench of five judges, which is hearing a petition challenging WhatsApp’s policy to share its user data with Facebook, the US-based social network that bought the popular instant messaging application in 2014.
According to petitioners Karmanya Singh Sareen and Shreya Sethi, both law students, the policy breached the privacy of 160 million users in India.
In response, additional solicitor general P Narasimha said data of users were “integral” to the right to life and personal liberty that the Constitution guarantees. “My personal data are intimate to me. If there is any contractual obligation between the individual and the service provider impinging on an individual’s right, the state will have to intervene and regulate sharing of such data as these are an integral part an individual’s personality,” he said.
The law officer assured the court that regulations would be ready soon to prevent private social media operators from sharing personal data of subscribers without their consent.
The court fixed September 6 for the next hearing, after noting that a nine-judge bench is in the process of determining whether privacy is a fundamental right guaranteed by the Constitution.
The government’s stand on social media contradicts its position in the privacy and Aadhaar cases. It said right to privacy is not constitutionally inherent.
According to petitions challenging the Aadhaar law, collection of biometric details to issue the 12-digit unique identification number invades people’s privacy.
The WhatsApp counsel, senior advocate Kapil Sibal, argued that the petition was not maintainable because it was filed by just two people. Besides, he said his client provides free telephony, messaging and data services.
His argument did not convince the bench. Justice Dipak Misra, who headed the bench, said: “When you are facilitating for X,Y or Z, you cannot impose arbitrary conditions. Data protection is a requirement, the nitty-gritty can’t be worked out by the court. Government can do this.”
Sibal also denied WhatsApp shared data with a third party and only Facebook can access the information. He said other platforms such as Google, Yahoo and Uber share subscriber data.
“But nobody criticises them,” said senior advocate Siddhartha Luthra, appearing for Facebook.
In response, justice Misra remarked: “Uber is a taxi operator. That really can’t be compared or equated with a service provider of the present nature (WhatsApp). You (Whatsapp) can’t impose conditions which are against my rights. You can’t control my choice.”
Representing the petitioners, senior advocate Harish Salve said data sharing is “gross transgression of a citizen’s right to privacy”.
