WhatsApp privacy: SC constitution bench to hear on Monday

A five-judge constitution bench of the Supreme Court will from Monday start examining the privacy policy of instant messaging service WhatsApp, which has come under challenge on the ground that it allegedly infringed on the fundamental rights.

The crucial matter has been listed before a second constitution bench during the summer vacation. A five-judge constitution bench headed by Chief Justice J S Khehar is already hearing the triple talaq matter.

The WhatsApp matter would be heard by a bench comprising Justices Dipak Misra, A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar.

The Centre on April 27 had told the bench that a "regulatory regime" for data protection was in the offing as an individual's freedom of choice needs to be protected. The government's submission had come after the constitution bench had asked it to clarify its stand on the issue.

Senior advocate Harish Salve, who was appearing for petitioners Karmanya Singh Sareen and Shreya Sethi, had placed before the bench the questions of law which were required to be dealt with in the matter.

Referring to the WhatsApp's new privacy policy, Salve had said that someone could snoop into the messages, videos and photos which a user shares or circulates on the instant messaging platform.

Senior advocate Kapil Sibal, representing WhatsApp, had countered the submissions saying they were protecting privacy of users as they have an end-to-end encryption technology which cannot be looked at by a third person.

Senior counsel K K Venugopal, representing Facebook, had also filed an application raising the preliminary issues on the maintainability of the plea.

During the hearing, Salve had read out the questions of law submitted by him, which included "whether Article 21 read with Articles 14, 19 and 25 of the Constitution, confers upon all persons the right to privacy in respect of communications which are private in nature, irrespective of the medium of communication".

"Whether Article 19, read with Articles 14, 19 and 25 confer upon all persons the right to privacy in respect of all personal communications as well as personal data - financial and otherwise," he had asked.

While Article 14 relates to equality before the law, Article 19 pertains to freedom of speech and expression.

Similarly, Article 21 and 25 relates to right to life and freedom of conscience and free profession, practice and propagation of religion respectively.

Salve had said if the answer to the two questions were in the affirmative, the court would have to deliberate on whether any unauthorised access to such communications or personal matters or particulars by any agency without legal authority violated Article 21 read with Articles 14, 19 and 25.

The other questions suggested by Salve were "Whether the right to privacy, in Article 21 read with Articles 14, 19 and 25 extends not merely to the state and its agencies, but also to private agencies who in the course of their business, have access to such information made available to them on condition of secrecy and confidentiality."

"Whether service providers, particularly monopolies and quasi monopolies, who operate services incidental and ancillary to telecommunications and in the course of which they carry messages of private persons, or have access to particulars of private persons, are under a constitutional duty to protect and preserve the privacy of private persons".

He had also said if the answer to these two questions were in the affirmative, the court has to deal with the issue "whether the state is under an obligation to protect the constitutional rights of persons, to frame appropriate rules and regulations to ensure that those agencies who operate telecommunications and allied services function in a manner that sufficiently protects and safeguards the constitutional rights to privacy of private persons".

The apex court is hearing the appeal assailing the Delhi High Court verdict on the ground that no relief was granted for data shared by users after September 25, 2016 which amounted to infringement of fundamental rights under Articles 19 and 21.

The apex court had on January 16 sought the responses from the Centre and Telecom Regulatory Authority of India on the plea that privacy of over 157 million Indians has been infringed by social networking sites - WhatsApp and Facebook for alleged commercial use of personal communication.