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In the recent times, the importance of data protection has taken a front row stand. In 2017, The Supreme Court held that right to privacy is a fundamental right guaranteed under Article 21, in the landmark Justice Puttaswamy case. [WP (c) 494.2012]. However, with our ever increasing dependency on technology, it is important that new laws and regulations be formed to protect a consumer from private data exploitation.
In 2009, Jan Koum and Brain Action, created a technological platform for instant messaging that could be accessed by a consumer free of cost. It gained international recognition and now, WhatsApp, has become a cheaper and more popular alternative to SMS; being available in 180 countries and having over 340 million users.
Through WhatsApp, a user can share messages, videos, pictures, voice notes and even important documents with the person of his/her choice. Most of such informative may be confidential or private to the user and hence, it is important that such data be protected.
Background of the Issue & Stand of the Constiution
The updated policy of WhatsApp contradicts the Right to Privacy safeguarded under Article 21 in Part III of the Constitution of India. It was held in the Puttuswamy case that that right to Informational privacy falls within the ambit of Article 21 and each individual has the right to exercise control over his presence on the internet and data thereof. It was further held that, even where data was being extracted, it could only be done when it was 1) in public interest 2) done by a competent legislature 3) ONLY upto the required extent.
Facebook, is the parent company of many flourishing social media sites such as Instagram and Twitter and with WhatsApp coming under the control of Facebook, the same will be able to monopolize date within itself. Facebook in the recent times has acquired a notorious name for itself. In 2019, Facebook was held guilty of Federal Trade Commission and charged with damages of $5 Billion. Facebook had, in 2018 sold data of consumers to a political campaign agency based out of Britain called Cambridge Analytica, who in turn used this data to profile individuals and create target political strategies.
Another pressing issue is, that while India has the majority number of WhatsApp consumers, preferential treatment was given to the European Union and different privacy policies have been created for India and Europe.
Union Government’s take
The questionnaire asked questions regarding:
- The exact kind of data that was being collected from the Indian users
- Details of permissions and consents
- Utility of various service providers
- The reason for collection of ‘vast amount og highly invasive and granular metadata &
WhatsApp is still to reply to this questionnaire.
Also read: Explained: Curative petition
What does whatsApp say?
It has further clarified that users will have the option to download and delete their data and third party corporations (or WhatsApp) will not have access to contacts, location, groups or calls.
WhatsApp has further claimed to reduce contact time between business and client by letting a client WhatsApp message a business, of which the user saw an Ad on Facebook. WhatsApp has also added a payment feature which promises to increase convenience for user satisfaction.
It cannot be ignored that most privacy policies are made for personal gain and all such policies are unregulated. The Constitution under Article 21 protects a right to a person’s life and liberty which includes the right to privacy of a person, and as held in the Puttaswamy case, in India data can only be collected for public interest by authorized legislature and if data is collected arbitrarily, the Supreme Court is authorized to put a hold on this.
- The collection of data is arbitrary and hence ultravires to the Constitution.
- Collection points being scattered across borders makes it extremely hard to claim damages in case of breach.
- There are no solid data protection laws in India.
- Differential policy treatment between India and other countries gives rise to suspicion.
- User does not have an option to object.
However, when the coin is flipped and the other side is considered, the creation of a link between WhatsApp and Facebook would inevitability transform business services and create a more convenient and user friendly mode of business communication.
Author: Fareedunnisa Huma
Editor: Kanishka Vaish, Editor, LexLife India.