By Srija Kumar
The Supreme Court of India has expressed serious concern regarding the process by which WhatsApp and its parent company Meta handles information taken from users. Concerns have also been raised about what those entails, causing more problems for the judiciary about how digital convenience can lead to loss of personal identity.
In the present case, WhatsApp’s 2021 plan to enhance its privacy policies increased the amount of information that will be shared with various other services that are owned and operated by Meta. Although WhatsApp claims that user-to-user communication is encrypted, the judges on the court were concerned about the broader scope of user information that is collected and monetised. Instead of the internal communications protected by the encryption of user-to-user communication.
The justices also expressed concern about whether or not Indian citizens had the ability to give free and informed consent when they agreed to WhatsApp’s policy revisions. These were beyond issues of consent and there are significant practical impediments preventing Indian users from refusing to accept revisions of terms. Users irrespective of their willingness to agree to those terms or the terms are being revised.
Concerns about the unequal accessibility to information were underscored at the hearing, and the Court of Appeal described how the long policy documents and complicated legal language might be difficult for significant segments of society. This is true especially for those who are not from urban communities or who do not have basic digital skills. This raises broad questions regarding the extent to which consent can be obtained.
The matter was brought to attention from a complaint about WhatsApp’s new privacy policy filed by the Competition Commission of India against Meta for abusing its market power. Although the appellate tribunal allowed limited data sharing activities to continue, the ruling by the Supreme Court means that this issue could affect more than just competition law, as it could also impact individuals’ constitutional rights.
The case centers around the increasing commercial use of user data, but the court communicated that personal data cannot be viewed as another tradable asset without adequate protections, transparency, and user control. Additionally, the court seemed reluctant to accept business models that are primarily based on user profiling and targeted ads as it is possible that the user does not fully understand how their data flows through the various platforms.
This case is taking place while India is still developing its larger digital privacy regulatory framework at the same time. The Supreme Court’s comments indicate that there needs to be more accountability and protection for users.
This case will be continued in the coming weeks, which will likely affect how global tech companies act in the world’s largest digital market. For millions of Indian users, the result of this case may also determine how much of their personal data they feel they have control over in a more connected world.