Privacy Policy Row: WhatsApp Indulging In Anti-User Practices, Obtaining Trick Consent, Centre Tells HC



New Delhi: The Central government on Thursday told the Delhi High Court that WhatsApp is obtaining “trick consent” from its users for its updated 2021 privacy policy ahead of the Personal Data Protection (PDP) Bill becoming law.

Centre alleged that this was being done under a game plan to have existing users in committing to its policy.

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In the Delhi HC hearing, the union government claimed that WhatsApp is indulging in anti-user practices by obtaining “trick consent” from its users for the updated privacy policy.

“It is submitted that millions of WhatsApp existing users, those who have not accepted the updated 2021 privacy policy are being bombarded with notifications on an everyday basis,” centre’s affidavit stated while citing a screenshot. It urged the court to restrain WhatsApp from “pushing notifications” to its users.

In its additional counter submitted to the High Court, the Centre wrote: “The respondent no. 1 (WhatsApp) has unleashed its digital prowess to the unsuspecting users and would like to force them to accept the updated 2021 privacy policy the game plan is very clear, i.e, to transfer the entire existing user committed to updated 2021 privacy policy before the Personal Data Protection (PDP) Bill becomes the law.”

WhatsApp is currently having access to the personal, sensitive personal, and business data of hundreds of millions of Indian users and it has also acquired a role that an “essential digital service” during Covid-19 pandemic, the affidavit added.

For this reason, the government has asked the court for WhatsApp’s privacy policy to be examined on the touchstone of privacy principles as laid down in K.S. Puttaswamy verdict.

The Competition Commission of India (CCI) has formed a prima facie opinion that WhatsApp has contravened the provisions of Section 4 of the Competition Act, 2002 “through its exploitative and exclusionary conduct, in the garb of policy update,” it stated.

The CCI has also opined that a detailed investigation needs to be conducted to ascertain the full extent, scope and impact of data sharing through involuntary consent of users.

“The current notifications as being pushed by the respondent no.1 on its users whether existing or new is against very grain of prima facie opinion of the CCI order,” added the affidavit.

The union government stated the aforementioned arguments in response to PIL seeking the Centre’s direction in making WhatsApp either rolling back the new privacy policy or providing an opt-out option to its users.

Centre stated that WhatsApp’s new updated privacy policy violated the Information Technology Rules of 2011 and it may be restrained from implementing the new policy till the challenge to the validity of its policy is finally decided.

The Centre had introduced the PDP Bill, 2019 in the Lok Sabha. “Upon enactment, this law will provide a robust regime on data protection which will limit the ability of entities such as respondent no. 1 issuing privacy policies which do not align with appropriate standards of security and data protection,” the affidavit stated.

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WhatsApp’s Response 

Meanwhile, a statement has been issued by the popular messenger app company wherein it stated: “We reiterate that we have already responded to the Government of India and assured them that the privacy of users remains our highest priority. As a reminder, the recent update does not change the privacy of people’s personal messages. Its purpose is to provide additional information about how people can interact with businesses if they choose to do so”.

“We will not limit the functionality of how WhatsApp works in the coming weeks. Instead, we will continue to remind users from time to time about the update as well as when people choose to use relevant optional features, like communicating with a business that is receiving support from Facebook. We hope this approach reinforces the choice that all users have whether or not they want to interact with a business. We will maintain this approach until at least the forthcoming PDP law comes into effect,” the Spokesperson added.

(With Agency Inputs)

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