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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 ..... ring, in any manner whatsoever, details and data of every kind of the subscribers / users of WhatsApp with any entity including Facebook or its family of companies; (b) Issue a writ of mandamus or any other writ or direction in the nature thereof directing the respondent 1 and 5 or any other appropriate authority to discharge their executive, statutory and all other obligations in relation to protection and safety of privacy of details / data of every kind of the subscribers / users of WhatsApp all over the territory of India by taking all necessary steps / actions in discharge of their executive as well as statutory functions including by framing rules / regulations / guidelines for the protection of rights of citizens including the safeguarding and securing the privacy of citizens by ensuring that mobile application providers such as "WhatsApp" and other internet based messaging services do not compromise, share and/or exploit the information and data including messages, audio, video and other information of users in any manner whatsoever. (c) 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, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent being sought by WhatsApp for changing the privacy policy and the WhatsApp service must continue for all such users till the adjudication of the present writ petition; (h) Issue a writ of prohibition or any other writ or direction in the nature thereof prohibiting and restraining Respondents no. 2 to 4 from utilizing the works transmitted through the messaging service for any purpose including taking a presumptive licence for all the works and a further order restraining them from utilizing, reproducing and/or exploiting the said works in any manner whatsoever; (i) Pass such other order(s) as may be deemed fit and proper in the facts and circumstances of the case." 3. It is pleaded in the petition that "WhatsApp" was acquired in the year 2014 by the respondent No. 3/"Facebook Inc.", which is also a company based in USA (the respondent No. 4 being its Indian Office) and that all services relating to the respondent No. 2 are now controlled by the respondent Nos. 3 and 4. 4. It is also pleaded in the petition that when "WhatsApp" was launched by the respondent No. 2 in the year 2010, it had declared a privacy policy of total/complete safety against any kind of sharing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consent of the users is sought to be obtained. It is contended that the proposed changes in the privacy policy would result in irreversible damage to the fundamental rights of all users of "WhatsApp" who were guaranteed protection of privacy of their information. It is thus pleaded that it is necessary in the interest of justice to entertain the writ petition by PIL and to protect the personal and public rights of millions of citizens of this country who are using the service of respondent Nos. 2 to 4. 7. Apart from the respondent Nos. 2 to 4, the Union of India, Department of Telecommunications and the Telecom Regulatory Authority of India Ltd. (TRAI) have also been arrayed as respondent Nos. 1 and 5 respectively to the writ petition. When the petition was listed before us on 30.08.2016, Shri Kirtiman Singh, the learned Standing Counsel for Central Government appeared on advance notice on behalf of the respondent Nos. 1 and 5 and sought time to get instructions as to whether the functioning of the Internet Messaging Applications is controlled/regulated by the respondent No. 1 & 5. On the next date of hearing i.e. 14.09.2016, it was submitted by Shri Kirtiman Singh that thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be shared onto Facebook or any of Facebook's other family of apps for others to see, and nothing users post on those apps will be shared on WhatsApp for others to see; (b) WhatsApp has built privacy, end-to-end encryption, and other security features into WhatsApp. WhatsApp does not store user messages once they've been delivered. When user messages are end-to-end encrypted, WhatsApp and third parties can't read them; (c) WhatsApp still does not allow third-party banner ads on WhatsApp; (d) An existing user can choose not to have his/her WhatsApp account information shared with Facebook to improve his or her Facebook ads and products experiences; (e) Existing users who accept WhatsApp's New Terms of Service and New Privacy Policy will have an additional 30 days to make this choice by going to Settings > Account. 6. xxx xxx xxx xxx 7. Below is a brief set of facts relevant to this Petition: A. RETENTION OF CONTENTS OF MESSAGES (i) WhatsApp does not retain messages in the ordinary course of providing its services to its users. (ii) Once users' messages (including chats, photos, videos, voice messages, files, and share location information) are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iles) and WhatsApp calls are protected by end-to- end encryption. A copy of the White Paper is annexed to this Affidavit, and is marked as Annexure A-3. The White Paper is available on the WhatsApp website at https://www.whatsapp.com/security/. (x) WhatsApp's FAQ page available on its website at https://www.whatsapp.com/faq/en/general/28030015 states: "WhatsApp's end-to-end encryption ensures only you and the person you're communicating with can read what is sent, and nobody in between, not even WhatsApp. Your messages are secured with a lock, and only the recipient and you have the special key needed to unlock and read your message. For added protection, every message you send has a unique lock and key. All of this happens automatically: no need to turn on settings or set up special secret chats to secure your messages." C. DELETION OF ACCOUNT (xi) Users may delete their WhatsApp account at any time (including if users want to revoke their consent to WhatsApp's use of their information) using WhatsApp's in-app 'delete my account' feature. (xii) When a user deletes his/her WhatsApp account, his/her undelivered messages are deleted from WhatsApp&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Counsel that the following directions may be issued to the respondent Nos. 2 to 4 to meet the ends of justice: "a. A FULL OPT OUT option to Users from their information being shared with Facebook and its family of companies. This can be simply done by adding a button viz., "DON'T SHARE". b. For Users who completely delete WhatsApp, the information of such Users should be deleted completely from WhatsApp servers. c. For Users who opt to remain in WhatsApp and are willing to share data, past information should not be shareable. d. WhatsApp should not be allowed to use the information for any purpose without the User's consent." 14. It is relevant to note that "WhatsApp" is a software Application which facilitates sending and receiving variety of media, text, photos, videos, etc. by using the Internet. It is a free Application and anyone who has a working Internet connection can opt for the same. It is also pertinent to note that the Respondent No. 2 which launched "WhatsApp" as well as Respondent No. 3 which acquired the same subsequently are private entities. In fact, the users of "WhatsApp" and the Respondent No. 2 are parties to a private contract and the user ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "WhatsApp" amounts to infringement o f the Right to Privacy guaranteed under Article 21 of the Constitution of India. Even this cannot be a valid ground to grant the reliefs as prayed for since the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided {Vide: K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors., (2015) 8 SCC 735}. Having taken note of the inconsistency in the decisions on the issue as to whether there is any "right to privacy" guaranteed under our Constitution, a three-Judge Bench in K.S. Puttaswamy (supra) referred the matter to a larger Bench and the same is still pending. 18. Be that as it may, since the terms of service of "WhatsApp" are not traceable to any statute or statutory provisions, it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India. 19. However, we have taken note of the fact that under the Privacy Policy of "WhatsApp", the users are given an option to delete their "WhatsApp" account at any time, in which event, the information of the users would be deleted from the servers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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