The Supreme Court on Thursday questioned the Centre over its delay in framing a law to protect the data privacy of its citizens despite right to privacy being declared a fundamental right by the top court in 2017. The Centre, however, claimed that the new law would be introduced in the coming winter session of Parliament.
The issue came up before a five-judge Constitution bench, headed by Justice KM Joseph, which was discussing WhatsApp’s 2016 privacy policy that allowed the sharing of user data with Facebook and its other group companies for the purposes of advertising and marketing. This policy was challenged by two law students, Karmanya Singh Sareen and Shreya Sethi, as being violative of their fundamental right to privacy.
Solicitor General (SG) Tushar Mehta, appearing for the Centre, told the court that the concerns of the petitioners would be met by the law to be brought by government, saying that the Personal Data Privacy Bill was tabled in Parliament in 2019, scrutinised by a joint committee of Parliament, and later withdrawn in August this year to make way for a more comprehensive law based on suggestions and amendments proposed by the House panel.
“If you were so keen to have legislation, you could have brought it by now,” remarked the bench, also comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar. “You have endlessly kept the matter going,” it added, while posting the matter to January 17 in order to give ample time for the law to be enacted.
{{/usCountry}}“If you were so keen to have legislation, you could have brought it by now,” remarked the bench, also comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar. “You have endlessly kept the matter going,” it added, while posting the matter to January 17 in order to give ample time for the law to be enacted.
{{/usCountry}}The bench stressed that the matter will proceed on the next date irrespective of whether a law is in place or not. “The point is to secure the rights of users. If law can provide a solution, a reasonable time can be fixed to bring the law. Otherwise, we will have it listed and proceed with arguments in the case,” it added.
To be sure, the matter being considered by the Constitution bench is not about WhatsApp or Facebook alone, but one involving larger questions: can social messaging companies that exchange data be regulated under the relevant laws; and whether privacy policy should include “opt out” provisions without the user being forced to exit the platform.
The petitioners, represented by senior advocate Shyam Divan and Prabhas Bajaj, told the court that the WhatsApp policy was discriminatory as the standards followed by the social messaging platform in the European Union had additional safeguards.
Senior advocate Kapil Sibal, appearing for WhatsApp, submitted in response that different standards apply to different countries depending on their legal regimes. He said that WhatsApp was willing to abide by the law governing the issue in India.
To this, the court asked: “Having admitted that you have different standards in different countries is it not true that Indian WhatsApp users are the highest in the world? The advantages and disadvantages qua being the largest group of users are also being perceived in this matter.”
Divan said users should be protected even in the absence of a law: “Until the bill takes shape, Indian users cannot be put to a serious disadvantage vis-à-vis other users.... If privacy is accepted to be a global human right, these companies have to adopt a golden mean or golden standard to ensure its protection.”
Mehta agreed that no multinational company can be permitted to not adhere to standards of privacy. “No multinational company should feel that because we are a global group, we can flout law. But this is happening,” the SG said, pointing to a pending case before the Karnataka high court where the Centre has objected to social media firm Twitter’s petition challenging the blocking or take down orders by the government.