Is WhatsApp a private service or public utility?: SC

Court agrees to examine plea on breach of right to privacy

The WhatsApp Messenger is a private service or a public utility? The Supreme Court on Monday agreed to examine a plea that raised apprehension of right to privacy of WhatsApp users being compromised by sharing information with Facebook.

A bench of Chief Justice J S Khehar and Justice D Y Chandrachud told two students, who challenged the 2016 Delhi High Court judgement allowing WhatsApp Messenger service to share data with Facebook, that the facilities were being provided without paying anything and they can opt out of it.

“You can choose to opt out of WhatsApp if you want to protect your privacy,” the bench told senior advocate Harish Salve, appearing for the petitioners.

Salve, on his part, contended that other countries like the United Kingdom and Germany have been regulating it and there has to be sufficient amount of data protection.

To this, the bench said, “What is disturbing is you want to use this private service and at the same time you want to protect your privacy, you can walk out of it and choose not to avail its services.”

Salve submitted that as there were 155 million users, it has become a public utility service like telephone calls, which cannot be intercepted without the government’s permission.

The court then said, in telephone service, you pay for it and get your privacy, but here you don’t pay. On this, Salve submitted that even telephone calls come for free in certain cases.

“The government has a duty to regulate the telecom service. Our complaint is with the telecom regulator, TRAI should do it,” he said.

The bench then asked under what provisions of law the court should issue orders if the server is lying in a foreign country. Salve said, “My right should be protected as guaranteed under Article 19 (freedom of speech) and Article 21 (right to life) of the Constitution.”

Agreeing to hear the matter, the court issued notice to the Union government, the TRAI, and WhatsApp and Facebook on the special leave petition, seeking their response within two weeks.

The court also asked Attorney General Mukul Rohatgi to assist it. During the hearing, the court indicated that it would set up a Constitution bench in summer vacation to consider a similar plea for right to privacy raised in petitions challenging collection of private data in preparation of ‘Aadhaar’.