WhatsApp hearing starts

TT, New Delhi, May 15: The government today admitted before the Supreme Court that existing regulations were inadequate to protect the privacy of user data shared by "over-the-top" social media services like WhatsApp, which has decided to share data with Facebook.

Senior advocate Vibha Dutta Makhija, who appeared for the Centre, told a bench of Justices Dipak Misra, A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M. Shantanagoudar that the regulations covered only licensed telecom operators, not unlicensed operators like the messaging service.

But the government contended that any privacy clause by WhatsApp had to conform to the existing regulations, she told the constitution bench that commenced hearing on the matter today.

The bench is dealing with a petition  filed by two Delhi-based law students who have alleged that last year's decision.

WhatsApp to share subscriber data with Facebook, which has acquired the popular messaging service, seriously impinged on the privacy of 160 million Indian users.

Delhi High Court had earlier ruled that WhatsApp should delete all data in its possession till September 25, 2016. At the same time it had said the messaging service provider was free to share the data with Facebook after that date, thus enabling subscribers to voluntarily withdraw if they were not keen on sharing their data with Facebook.

In its September 23 judgment last year, the high court had also asked the Centre and telecom regulator Trai to examine the feasibility of bringing messaging services like WhatsApp under a regulatory regime.

Not satisfied with the high court judgment, the petitioners - Karmanya Singh Sareen and Shreya Sethi - had moved the Supreme Court. The matter was subsequently referred by the apex court to the five-judge bench to determine whether such sharing of data seriously impinged upon a citizen's right to privacy guaranteed under Article 21 of the Constitution.

Senior advocate K.K. Venugopal, who appeared for Facebook, told the bench the apex court could not interfere in a purely private contractual affair between the two companies.

He submitted that WhatsApp services were encrypted and there was no provision under which it could peruse any data shared, for instance, by two individuals. "Everything is encrypted," he said, claiming that any data stored or transferred to WhatsApp could not be shared with third parties without their consent.

Advocate Madhavi Divan, who represented the petitioners, said the agreement to mutually share data by WhatsApp and Facebook violated a citizen's fundamental right under Article 19(1)(a) to communicate freely.

The arguments would continue tomorrow.