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TMI Blog2016 (9) TMI 1674X X X X Extracts X X X X X X X X Extracts X X X X ..... p servers and the same shall not be shared with the Facebook or any one of its group companies. ii) So far as the users who opt to remain in WhatsApp are concerned, the existing information/data/details of such users upto 25.09.2016 shall not be shared with Facebook or any one of its group companies. iii) The respondent Nos. 1 and 5 shall consider the issues regarding the functioning of the Internet Messaging Applications like WhatsApp and take an appropriate decision at the earliest as to whether it is feasible to bring the same under the statutory regulatory framework. Petition disposed off. - Hon'ble Judges G. Rohini, C.J. and Sangita Dhingra Sehgal, J. For the Appellant : Ms.Pratibha M.Singh, Mr.Sandeep Sethi, Sr.Advs. with Mr.T.Singhdev, Mr.Prabhas Bajaj, Mr.Tarun Verma, Advs. For the Respondents : Mr.Ruchir Mishra, CGSC with Mr.Mukesh Kr.Tiwari, Adv. for UOI. Mr.Siddharth Luthra, Sr.Adv. with Mr.Tejas Karia, Mr.Akhil Anand, Mr.Vivek Reddy, Ms.Richa Srivastava, Mr.Shashank Mishra, Ms.Tara Narula, Mr.Gautam Khazanchi, Advs. Mr.Kirtiman Singh, Standing Counsel and Mr.Prashant Bezboruah, Adv. JUDGMENT G. Rohini, C.J. 1. The petitioners claim to be the users of WhatsApp , an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he new Policy of WhatsApp] and the complete / absolute privacy and not sharing details / data in any manner whatsoever - must remain continued for all other Users of WhatsApp; (e) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No. 1 and 5, and any other authority, to formulate appropriate Guidelines so as to regulate the functioning of Respondents No. 2 to 4 and other similarly placed internet based messaging services including their Privacy Policy for handling of or dealing in personal information including private messages / photos / conversations / audio messages / videos / documents data so as to ensure that the privacy rights of the users are not compromised and duly protected; (f) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No. 1 and 5, and any other authority, to formulate appropriate Rules / Guidelines so that it is made mandatory for Respondents No. 2 to 4 and other similarly placed internet based messaging services to duly inform its users about the actual and true import of their Privacy Policy in respect of the information pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy policy of WhatsApp would result in altering/changing the most valuable, basic and essential feature of WhatsApp i.e. the complete protection provided to the privacy of details and data of its users. It is also contended that the unilateral action of the respondent Nos. 2 to 4 in taking away the protection to privacy of details and data of users of WhatsApp and sharing the same with Facebook and all its group companies for the purpose of commercial advertising and marketing amounts to infringing the fundamental rights of the users guaranteed under Article 21 of the Constitution of India. The further contention is that the change in the privacy policy without informing its users is not a fair practice and hit by the principles of estoppel. 6. It is claimed by the petitioners that the present petition is filed in public interest on behalf of themselves and millions of users who are citizens of India using WhatsApp messaging service. It is sought to be contended that by the impugned action of the respondent No. 2 a fa ade is being created as if a consent is being taken from the users before the change of the privacy policy which is the basic feature of the service, is carried out an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by TRAI on 30.05.2016 and the consultation is under progress. 9. As could be seen, the calling feature of WhatsApp was the subject matter of V.D. Moorthy v. Union of India (supra) whereas the issue sought to be raised in the present petition relates to the protection of privacy of details and data of users of WhatsApp . 10. Though no notice was issued to the respondent Nos. 2 to 4, the respondent No. 2 on its own had chosen to enter appearance and it was represented by Shri Siddharth Luthra, the learned Senior Counsel, during the course of the hearing on 14.09.2016 that the writ petition which is based on unfounded apprehensions of the petitioners is devoid of merit. We, therefore, directed the respondent No. 2 to file an affidavit explaining the factual position. 11. Accordingly, a short affidavit dated 19.09.2016 has been filed on behalf of the respondent No. 2. Relevant paragraphs of the said affidavit may be reproduced hereunder for ready reference: 5. The following are relevant provisions from the Key Updates summary included with the Terms of Service dated 25 August 2016 ( New Terms of Service ) and Privacy Policy dated 25 August 2016 ( New Privacy Policy ), which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ://blog.whatsapp.com/10000618/end-to-end-encryption states: WhatsApp has always prioritized making your data and communication as secure as possible. And today, we're proud to announce that we've completed a technological development that makes WhatsApp a leader in protecting your private communication: full end-to-end encryption. From now on when you and your contacts use the latest version of the app, every call you make, and every message, photo, video, file, and voice message you send, is end-to-end encrypted by default, including group chats. The idea is simple: when you send a message, the only person who can read it is the person or group chat that you send that message to. No one can see inside that message. Not cyber-criminals. Not hackers. Not oppressive regimes. Not even us. End-to-end encryption helps make communication via WhatsApp private--sort of like a face-to-face conversation. (ix) WhatsApp provides on its website a technical White Paper that explains its encryption system, entitled WhatsApp Encryption Overview dated 4 April 2016 ( White Paper ). The White Paper states that messages between WhatsApp users are protected with an end-to-end encryption protoco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we try to deliver it. If a message is still undelivered after 30 days, we delete it. To improve performance and deliver media messages more efficiently, such as when many people are sharing a popular photo or video, we may retain that content on our servers for a longer period of time. We also offer end-to-end encryption for our Services, which is on by default, when you and the people with whom you message use a version of our app released after April 2, 2016. End-to-end encryption means that your messages are encrypted to protect against us and third parties from reading them. Deleting Your WhatsApp Account. You may delete your WhatsApp account at any time (including if you want to revoke your consent to our use of your information) using our in-app delete my account feature. When you delete your WhatsApp account, your undelivered messages are deleted from our servers as well as any of your other information we no longer need to operate and provide our Services. Be mindful that if you only delete our Services from your device without using our in-app delete my account feature, your information may be stored with us for a longer period. Please remember that when you delete your a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the United States and you expressly consent to that transfer and consent to be governed by California law for these purposes. In the Event of Merger, Sale, or Bankruptcy In the event that WhatsApp is acquired by or merged with a third party entity, we reserve the right to transfer or assign the information we have collected from our users as part of such merger, acquisition, sale, or other change of control. In the (hopefully) unlikely event of our bankruptcy, insolvency, reorganization, receivership, or assignment for the benefit of creditors, or the application of laws or equitable principles affecting creditors' rights generally, we may not be able to control how your personal information is treated, transferred, or used. Changes And Updates to This Privacy Notice This Privacy Policy may be revised periodically and this will be reflected by the effective date below. Please revisit this page to stay aware of any changes. Your continued use of the WhatsApp Site and WhatsApp Service constitutes your agreement to this Privacy Policy and any amendments. 16. In the light of the above clauses, it appears to us that it is not open to the users now to contend that WhatsApp shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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