This article has been written by Eashwari Nair. Eashwari is currently a student in Symbiosis Law School, Hyderabad.

Privacy. The term which seems to be associated very often to social media and due to recent events, Whatsapp in specific. The recent events that lead to this very association of Whatsapp and privacy was mainly because of the change in privacy policy which seems to have created a wide scope of exploitation of personal information.

What is a privacy policy and what does it have to do with Whatsapp?

A privacy policy is a set of data collected by a technological company such as facebook, Google etc. This data can be phone numbers, contacts, pictures etc the application can have access to.

Being advertisement free and not selling information was one of whatsapp’s intentions that resulted in its inception.  But ever since the acquisition of this company by facebook in the year 2014  , the change in the initial intention seems inevitable despite a statement released by them that they shall remain independent. Not only does Whatsapp now wishes to use your personal information, it seems to want to use that very data for its sister company facebook to direct advertisements and develop of concept of targeted marketing. In addition to this feature they also seem to be open to the idea of constructing transaction models as well for example booking flight tickets.

The other key feature in the new policy is that Whatsapp has expressly mentioned that facebook can utilise you Whatsapp data in order to recommend better product suggestion. And therefore facebook will know your phone number and will be notified on the people you usually text or message.

Although Whatsapp gives its users a method to opt out of some of the data sharing agreement, allowing them to untick or uncheck a (mostly hidden) box on the page that tells them about the change. But the catch is that it probably not opt out of everything i.e that there is a high probability that not all data will be delinked with your account.

Why does this new policy seem to generate uproar?

There are quite a few reasons is to why this highly market oriented privacy policy generates a cause for concern

Primarily this   policy seems to pierce into the concept of privacy of an individual, By taking away the protection to privacy of details and data of users of Whatsapp and sharing the same with Facebook and all its sister companies for the purpose of commercial advertising and marketing leads to infringing the fundamental rights of the users guaranteed under Article 21 of the Constitution of India i.e the right to life and liberty and the theory of right to privacy seems to fall under it’s scope [1]  .  Further this manoeuvre is seen to hit the principles of estoppel as well.

Secondarily it also must be noted that we live in a country where education still seems to be a distant dream in majority of the places in India. And therefore the average capacity to comprehend the stated terms and conditions stated in the agreement of privacy is extremely flimsy in nature.[2]

In addition to this it is also to be noted that the consent acquired when the privacy policy and it’s rules were stated, there was no mention about the exact purpose of utilisation of the information extracted, i.e. usage of the information taken in order to promote market inclined activities. This action opens the scope of exploitation and misuse of personal information.[3]

What was the consequence of  this privacy policy?

In India in specific, recently the Delhi High court dealt with a PIL filed by 2 students i.e Karmanya Singh Sareen and Shreya Sethi. The bench was headed by Chief justice G. Rohini.  The court gave the green light on practice of this new policy on the condition that the TRAI would look into the rules and laws governing such messenger apps. Secondly till the 25^th of September no information is to be shared with it’s family company, facebook. Thirdly the option to opt out of this new rule should be explicitly stated.

The scope of Privacy Laws in India

This area of law has no definite sphere under which data protection can be accounted for. The derivation of privacy can be extracted from laws relating to information technology, intellectual property, crimes and probably contractual directed laws as well. In today’s world which is subjected to change at an ever increasing rate, the need to regulate and put a check on the extent of utilization of an individual’s personal information via technology or otherwise.

[1] We must keep in mind that the position of right to privacy is currently ambiguous in nature, and therefore the foundation of this postulation has a shaky stance.
The above can be inferred from K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors.

[2] This nature refers to the fact that although majority of the people maybe illiterate, it is seen that these people as well seem to understand the basic necessary operations required to operate a device with respect to the hardware aspect.

[3] This misuse and  exploitation is based on probability that s seen to be on the higher scale , since elements of regulation and standardisation of rules are absent.

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