WhatsApp privacy issue may go to SC’s Constitution Bench

Satya Prakash

Tribune News Service

New Delhi, April 5

The Centre on Wednesday admitted before the Supreme Court there was no proper regulatory framework to address privacy concerns of citizens arising out of “Over-The-Top” popular messaging services such as WhatsApp, Facebook and Skype.

However, the NDA government told a Bench headed by Chief Justice of India JS Khehar that the Department of Telecommunications (DoT) was exploring a “regulatory framework” in consultation with TRAI. “Department of Telecommunication is seized of the issue and shall finalise policy direction on various aspects of regulatory and licensing framework for OTT services and net neutrality after taking into account the TRAI recommendations on the subject,”, Additional Solicitor General Tushar Mehta told the Bench.

Rapid advances in technology had resulted in newer uses of internet leading to growth of a new breed of services known as Over-The-Top (OTT) services, which needed to be covered under a regulatory mechanism. OTT refers to applications and services such as WhatsApp, Skype, Viber, WeChat, Facebook Messenger etc. — accessible over the internet and ride on telecom operators’ networks offering internet services.

The Bench indicated the right to privacy would be taken up by a Constitution Bench from April 18. In its affidavit, the Centre said the Telecom Regulatory Authority of India (TRAI) had issued a consultation paper titled “Regulatory Framework for Over-The-top(OTT) services“ on March 27, 2015 and its recommendations were awaited. DoT would finalise the policy after getting the TRAI’s recommendations, it said.

The affidavit comes in response to the top court’s January 16 direction to the Centre, TRAI, WhatsApp and Facebook seeking their views on a petition challenging WhatsApp’s decision to share 160 million Indian users’ data with Facebook.

Petitioners Karmanya Singh Sareen and Shreya Sethi had alleged WhatsApp’s decision to share all its subscribers’ data with Facebook impinged on privacy of 160 million Indian users.

The Delhi High Court had last year ruled that WhatsApp should delete all data in its possession till September 25, 2016, but said the company was free to share the data with Facebook post September 25, 2016, thus enabling subscribers to voluntarily withdraw from the service if they were not keen on sharing their data with Facebook. 

The high court had asked the Centre and TRAI to examine the feasibility of bringing the messaging services under a regulatory regime in India. The petitioners have challenged the HC verdict in the top court.