29 September 2016
Parul Sharma, Analyst at the Centre for Communication Governance at National Law University of Delhi, told DataGuidance, “In the absence of a privacy law and strong data protection measures it is a strong judgement. […] The general implication of the case on mobile application providers and internet based messaging services is dependent on how courts interpret this judgement in the future.”
While the existence of this right is pending before the Supreme Court in K.S. Puttaswamy, multiple courts have affirmed the constitutional right to privacy since then
Smitha Krishna Prasad and Abhishek Senthilnathan, Associates at Nishith Desai Associates noted, “There is no statutory framework to govern the functioning of internet based messaging services like WhatsApp in India […] Therefore, the High Court has correctly taken the view that WhatsApp may choose to change the terms and conditions of service and users cannot compel WhatsApp to operate within specific parameters.”
It was argued in the case that the right to privacy guaranteed under Article 2I of the Constitution of India could be a valid ground to prevent WhatsApp sharing data with Facebook. However, the High Court rejected this argument on the basis that the existence of the fundamental right to privacy is yet to be decided in the pending case K.S. Puttaswamy and Anr. v. Union of India & Ors. (2015) 8 SCC 735.
“While the existence of this right is pending before the Supreme Court in K.S. Puttaswamy, multiple courts have affirmed the constitutional right to privacy since then,” Sharma commented. “Till the enactment of a strong privacy law people will have to depend on courts to safeguards their privacy. Though currently the safeguards have been implemented in a piecemeal fashion.”
Avik Biswas and Prashant Kumar, Partner and Principal Associate respectively at IndusLaw, concluded, “The High Court has been cautious in its approach and has limited its directions to what has already been covered under WhatsApp’s policy with only one addition. The High Court has stated that the writs are not granted for the reason that it was not traceable to any statute or statutory provisions. Therefore, it is likely that these directions may be challenged.”
Ningxin Xie | Privacy Analyst