Won't compel users to accept new privacy policy: WhatsApp tells Delhi HC

WhatsApp also clarified before bench that it would not limit the functionality for users who are not opting for new privacy policy in the meantime

WhatsApp told the Delhi High Court on Friday that till the Data Protection Bill comes into force, it would not compel users to opt for its new privacy policy as it has been put on hold.

This is a significant development after the new Information Technology Minister Ashwini Vaishnaw made it crystal clear within minutes of taking charge that "law of the land is supreme" and no one can afford to disrespect it.

WhatsApp's counsel also accepted that its commitment is "we need to fit in the law".

Senior advocate Harish Salve, representing WhatsApp, submitted before a bench comprising Chief Justice D N Patel and Justice Jyoti Singh, "We will not enforce it until the Data Protection Bill will come out. In our case the government is the administrator of the rules...we said okay, we will wait till the Bill."

Salve also informed that the Union Ministry of Electronics and Information Technology (MEITY) has communicated to WhatsApp that it feels that its privacy policy is against the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), Rules 2011.

He added that his client replied to the ministry's notice that WhatsApp will not limit functionality for some time and continue to show users the updated version. "We will maintain this approach until the Data Protection Bill comes into force. We have voluntarily agreed to put the update on hold till then," submitted Salve.

He further added that if the Bill is enforced at a later stage, WhatsApp will conform to the parliamentary law. "If Parliament allows me to do it, I'll do it. Otherwise, I won't do it... The commitment is that I'll not do anything if the parliamentary law comes...we need to fit in the law," he said.

Senior advocate Mukul Rohatgi, representing Facebook, raised question on the jurisdiction of the Competition Commission of India to initiate inquiry while exercising suo moto powers. He added that the top court is already examining the 2016 policy, and there are three matters pending in the High Court.

In June, the Delhi High Court refused to stay a notice issued by the Competition Commission of India (CCI), asking WhatsApp to furnish certain information in connection with the probe, ordered in March, on the instant messaging app's new updated privacy policy.

A vacation bench of Justices Anup J. Bhambhani and Jasmeet Singh had said, "We do not consider it appropriate to stay the operation of impugned notice dated June 4, 2021 at this stage."

The bench noted that Additional Solicitor General Aman Lekhi has "fairly" stated June 4, notice, CCI seeking more information about the privacy policy, was perfectly in line with the procedure contemplated under the statute for taking forward an on-going investigation.

The bench had said: "The notice has not been stayed by the division bench, and it would take substantial time for preparation of a report pursuant to the receipt of the information called-for by way of the impugned notice, which report would thereafter be forwarded to the Competition Commission of India (CCI)."

In May, the court had issued notice in the appeals filed by WhatsApp and Facebook challenging a single judge order refusing to set aside the CCI probe into the messaging platform's privacy policy.