The contentious privacy policy also invited interventions by the Union government, which on multiple occasions urged the company to withdraw it.(File photo)
The contentious privacy policy also invited interventions by the Union government, which on multiple occasions urged the company to withdraw it.(File photo)

WhatsApp will put policy on hold till data law is enacted

WhatsApp, represented by senior advocate Harish Salve, told a bench of chief justice DN Patel and justice Jyoti Singh that it would not compel users to give consent for the new policy, but will continue to remind them about the update to the terms and conditions.
By Richa Banka, New Delhi
UPDATED ON JUL 10, 2021 04:13 AM IST

WhatsApp on Friday told the Delhi high court that it has “voluntarily agreed to put on hold” its new privacy policy till India enacts the proposed data protection law, while adding that users will not be compelled to accept new terms in a significant climbdown from its recent stance.

WhatsApp, represented by senior advocate Harish Salve, told a bench of chief justice DN Patel and justice Jyoti Singh that it would not compel users to give consent for the new policy, but will continue to remind them about the update to the terms and conditions.

The policy had also caught attention of the Competition Commission of India (CCI), which launched an inquiry against which the company filed a court appeal.

“The update which triggered the inquiry of CCI is, for the present, we have voluntarily agreed to put it on hold…We will not compel people to accept…We will continue to display our updates from time to time to people who have not accepted. In addition, we will display the update whenever a user chooses relevant optional features, like when a user communicates with a business receiving support from Facebook,” Salve told the court.


The controversy relates to WhatsApp making it mandatory for people to consent sharing data about their interaction with businesses (not including the actual message contents) on the app with Facebook companies if they wanted to keep using the service.

“The commitment is that I will not do anything till the parliamentary law comes. Obviously, then if parliamentary law comes, you have to fit within that law. If Parliament allows me to have a separate policy for India, I will have it. If it does not allow me, then bad luck. I will then have to take a call,” said Salve.

Friday’s stance is a significant departure from what the company said on May 17, when senior advocate Kapil Sibal, appearing for WhatsApp on that day, told the court that user accounts can be deleted for not accepting the new privacy policy.

Sibal had said that contrary to reports, WhatsApp was not deferring its update on the privacy policy and it came into force from May 15. He said that it would not straightaway delete the accounts and would rather persuade people to come on board.

The contentious privacy policy also invited interventions by the Union government, which on multiple occasions urged the company to withdraw it.

The court was hearing the appeals of Facebook and its firm WhatsApp against a single-judge order refusing to stop the competition regulator CCI from beginning a probe into WhatsApp’s privacy policy.

Salve argued that since the policy is on hold, the basis of the probe -- the privacy policy -- has been stalled and the inquiry by CCI “had become academic”.

But, the court remarked: “You are not implementing it but the policy is with you and any day it can come”. It asked Salve about the opt-out option being given to the European users and not to the Indian users.

To this Salve said: “Objectionable part was ‘take it or leave it’. For present, ‘take it or leave it’ is something we are not doing. Opt in, opt out is not there. If a user gives consent to the new privacy policy, his data would be shared. If they don’t, there is no change. Everybody is using WhatsApp even if they agree or not to allow sharing of the information of the users.”

He also said that WhatsApp has informed the Union government about the developments related to the implementation of the security policy after the latter sent a communication on May 13, asking them to withdraw the policy.

The communication sent to it in May established that the privacy policy was already a subject matter of hearing before the Supreme Court and the high court.

“Government has asked us to shut down the policy. We have said we will not enforce it till the Data Protection Bill comes out. That is open-ended because we don’t know when the Bill is going to come out.... Suppose the Bill allows me to do it, we will have completely different ramifications,” Salve submitted.

Opposing WhatsApp’s stand, additional solicitor general Aman Lekhi, for CCI, argued that as long as the privacy policy existed, its implications will continue to persist.

He said that the matter before CCI was only at the stage of inquiry and “nothing is going to happen even if steps are taken”.

“As long as policy stands, competition law issues persist... It is not as if by filing reply anything detrimental will happen until the court hears and disposes the matter,” Lekhi said, responding to WhatsApp’s contention that it should not be compelled to respond to information sought by CCI.

Senior advocate Mukul Rohatgi, appearing for Facebook, contended that the Supreme Court is hearing an appeal against WhatsApp’s privacy policy and hence CCI cannot be allowed to hold inquiry above a superior constitutional authority.

The court, while refusing to allow an impleadment application opposing WhatsApp’s plea, posted the matter for July 30.

Experts said WhatsApp’s latest stand did not have a legal foundation.

“It ultimately diverts the attention from the main issue that the privacy policy is in violation of IT Act and Rules. So rather than addressing that, what effectively WhatsApp is saying that we will continue to perpetuate our contravention under till a data protection law comes. That leads to WhatsApp losing its immunity against criminal prosecution. WhatsApp cannot wait for a new policy to justify its scheme which is in violation to the current law,” said senior advocate Pavan Duggal.

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