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WhatsApp and its Disturbed Relation with Right to Privacy

WhatsApp and its Disturbed Relation with Right to Privacy


Since 2014, WhatsApp has come under the radar of privacy activists when Facebook which is always criticized for its avaricious and timid privacy policies has acquired the same[1] There was a mass exodus at the same time of acquisition and the same can be substantiated by the fact that just after the acquisition of WhatsApp by Facebook, the other messaging app which is Telegram saw an increase of 8 million users[2] … Continue reading. Even after Facebook promised at the time of acquisition that it won’t share data with Facebook, the backlash was unprecedented. Certainly, the trend has been followed in the current year as well where another fashion of mass exodus was witnessed in the month of January. As reported by media houses, Telegram has seen a rise of 500% increase in its users and recorded 25 million new downloads within 72 hours just after WhatsApp updated its Terms of Service including Privacy regulations on the 4th of January, 2021[3]

Updation of Terms of Service and Privacy regulations

On the 4th of January, 2021 WhatsApp came up with its new Privacy policies mandating people to accept the same by the 8th of February 2021 or else they won’t be able to operate the application. In its updated regulations, it was notified that WhatsApp has now taken away the choice of its users as to how their data should be used and shared[4] Till now, users had the choice to not share their data with other Facebook-owned and third-party applications, however, now WhatsApp with its aim of interoperability of its application is taking away such right by changing the policy related to sharing of data with other applications giving Facebook an undue advantage of managing business communications that take place on its subsidiary messenger service like WhatsApp.

Eventually, the current update would allow WhatsApp and Facebook to exchange data and enable Facebook to have limited access to transactional and business-related transactions happening on WhatsApp in order to improve the accuracy of target advertising. It also clarified that those businesses which connect to their customer through WhatsApp will now be able to store those chats in Facebook-hosted servers, therefore, allowing them to use the same for potential advertising according to accessing the metadata[5]

WhatsApp which was trusted for its data-sharing strong policies was seen taking a U-turn. Critics called this move an extended exercise of Facebook to influence online advertising using its subsidiaries and thus promoting the art of surveillance capitalism. A similar incident even took place in the year 2016 when WhatsApp announced that it would start sharing some data with Facebook including phone numbers and last seen activity for ad targeting purposes. However, the 2016 policy version had the option for existing users to choose not to have their account information being shared with Facebook; nonetheless, the same consent option came to be removed in the 2021 policy version. Moreover, the 2021 updation is in addition to the 2016 update adding more in this year by allowing WhatsApp to have access to messages that users share with businesses on WhatsApp.

Clarification Issued by WhatsApp

Eventually, the backlash faced by WhatsApp was extremely massive compared to the minor effect it was going to create on the functioning of the application. It was due to misreporting by social media and fear in the mind of people regarding the trade practices of Facebook. In order to reduce the gravity of damage created by the update in terms of services, WhatsApp soon came out with a clarification where it directly pointed out that there will be no consequence on end-to-end encryption and the functioning of messages with friends and families will remain unaffected and secured[6]

It clarified that neither WhatsApp nor Facebook would be able to see private messages or hear calls and moreover it clarified that it does not keep logs of who is messaging or calling because it considers a data dump of this kind a “privacy and security risk”. It apparently also made clear that the applications will not have the access to see one’s location that is being shared and it will not even share data from groups with Facebook for ad purposes. Hence, this clarification elucidated that the new service terms will only affect the business chats and not personal chats.


Case filed against WhatsApp

The first case filed against WhatsApp related to its privacy issues was in the year 2016 where a writ petition by Karmanya Singh Sareen was filed in the Hon’ble Delhi High Court through which the policy change of WhatsApp was challenged that permitted WhatsApp to share data with Facebook. In that case, the High Court awarded partial relief and therefore dismissed the petition. The Hon’ble court held that information/data and details of non-existing members as of 25/09/2016 shall be deleted and information up to 25/09/2016 of existing members shall not be shared. However, not satisfied with the judgment of the High Court, the petitioner filed an SLP before the Hon’ble Supreme Court challenging the judgment of the High Court on the major issue that whether the right to privacy of users of millions of citizens of India is violated by the Privacy Policy of August 2016 of WhatsApp?[7]

The petition is pending till now and therefore, in the same petition, an interim application was moved to challenge the 2021 policy of WhatsApp where it was claimed that WhatsApp is offering lower privacy protections in Indian as compared to Europe. Similarly, a writ petition was also filed before the Hon’ble Delhi High Court challenging the new privacy policy of WhatsApp on the ground that the same has violated the fundamental right to privacy and allowed WhatsApp to profile users’ data without any government regulation[8] … Continue reading. While the matter is sub judice, WhatsApp has stated before the Hon’ble Delhi High Court that the new privacy policy is on hold and will not be enforced until the Personal Data Protection Bill comes into force and has also clarified that it would not limit the functionality for users who are not opting for new privacy policy in the meantime.

Cases Filed by WhatsApp

Ironically, on the one hand where WhatsApp is battling legal actions against its privacy policies, while on the other hand, it has sued the Indian government challenging the provisions of the new IT Rules, 2021. In Delhi High Court, WhatsApp has filed a suit against the Government of India challenging the traceability clause as mentioned in the new rules[9] WhatsApp argues that due to that certain clause mentioned in the Rules, WhatsApp is bounded to locate “the first originator of the information” if required by authorities and to do the same, it may have to breach the end-to-end encryption. WhatsApp spokesperson has said that to ‘trace’ chats would be the “equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp.”[10] Moreover, as per the Rules, failure to comply can lead to criminal prosecutions. Therefore, according to WhatsApp, this clause should be declared unconstitutional on the ground of the fundamental right to privacy.


It is a fact that WhatsApp is one of the most popular messaging applications in the world. Globally, WhatsApp has almost 2 billion users out of which approximately 390 million users are from India. In 2017 and 2019, WhatsApp was the most downloaded app globally, with 924 and 850 million downloads, respectively. Therefore, it is certain that the global presence of WhatsApp is increasing incessantly and thus any change in WhatsApp’s policy has a far greater impact than expected.

It is also important that any application which operated in India has to fully comply with the law of land and no matter it can diverge or contradict the rights protected by the law. Eventually, if WhatsApp has to function in India, it is duty-bound to safeguard the rights of Indian citizens and to obey the public policies.





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