Plea against WhatsApp privacy policy: Delhi HC judge recuses

A single-judge bench of Delhi high court Justice Prathibha M Singh on Friday recused from hearing a plea seeking direction for an injunction against the updated Privacy Policy of WhatsApp with immediate effect.

The court listed the matter for hearing on January 18 before another bench subject to orders of Delhi high court's Chief Justice.

During the short hearing, Justice Prathibha M Singh took strong objection to an email sent by WhatsApp to the court.

"I was in any case not going to hear it," the court clarified and sent the matter to another bench recording that the email sent by WhatsApp should be withdrawn unconditionally.

Additional Solicitor General Chetan Sharma, who was representing the Govt of India, opined that Justice Singh would be a better person to hear this matter because the matter raised a very important question of law.

During the short hearing, Justice Prathiba M Singh suggested that the matter be treated as public interest litigation.

An advocate has moved the Delhi High Court seeking direction for an injunction against the updated WhatsApp privacy policy with immediate effect.

The plea was filed by advocate Chaitanya Rohilla who was represented by advocate Manohar Lal.

The petitioner stated that WhatsApp changed its privacy policy in the most arbitrary manner and has made it compulsory for users to accept its terms and conditions, failing which the accounts and services would be terminated after February 8 for the respective user.

The petitioner said that the changed policy violates the Right to Privacy of the citizens of India, which a fundamental right, and is guaranteed in the part-III of the Constitution of India.

He sought to direct the Centre to lay down guidelines in the exercise of its powers under Section 79 (2) (c) read with Section 87 (2) (zg) of the Information Technology Act and under Constitution of India to ensure that respondent WhatsApp does not share any data of its users with any third party or Facebook and its companies for any purpose whatsoever.

The petitioner has also sought to issue a writ of mandamus for an injunction against the updated privacy policy by WhatsApp with immediate effect and to issue guidelines or directions to ensure that any change in the privacy policy by the messaging app will be carried out strictly in accordance with the Fundamental Rights guaranteed in part-III of the Constitution, till such time as rules and guidelines are framed by Ministry of Electronics and Information Technology.

Highlighting that WhatsApp has become an important mode of communication amongst the citizens of India and is also being used to aide multiple governmental functions as well, the petitioner also pointed out that Supreme Court has allowed the service of summons via electronic mode including WhatsApp.

'This substantiates to the fact that WhatsApp is discharging a Public Function despite being a private entity. In the prevalent COVID-19 pandemic times, confidential proceedings such as that of the mediations is being conducted by WhatsApp.

'For instance, the District Legal Services Authority, Mediation and Conciliation Centre, Gurugram, use WhatsApp to conduct mediation proceedings (Video Conference) through WhatsApp,' the petition said.

'Over the years, WhatsApp use has become indispensable in the day to day affairs of citizens and also in Government and Judicial functionaries. At the outset, WhatsApp cannot be allowed to go berserk at its whims and fancy,' it added.

According to the petition, WhatsApp is an instant messaging service provider application and more than two billion people in over 180 countries use the service to stay in touch with work, friends and family, anytime and anywhere.

As per its application's official website, with 'WhatsApp, one gets fast, simple, secure messaging and calling for free available on phones all over the world. WhatsApp is free, it uses internet connection via WiFi or Data connection, and offers message and calling, available on phones all over the world.

'WhatsApp is an effective alternative to SMS and has grown its root deep into the society and their product supports sending and receiving a variety of media: text, photos, videos, documents, and location, as well as voice calls.'

The petition said that Facebook Inc. is an American online social media and social networking service based in Menlo Park, California, and a flagship service of the company Facebook Inc.