IS WHATSAPP’S NEW PRIVACY POLICY A BREACH OF RIGHT TO PRIVACY?

WhatsApp is being criticised for its revised privacy policy under which Facebook and its partner companies will get access to selected user data. Since then, there has been an increase in the downloads of alternative messaging apps. Although WhatsApp has clarified that with end-to-end encryption, one cannot see the private chats or calls. WhatsApp had given its users a time period till February 8, which is now extended to May 15, to accept the new terms and conditions otherwise their account will stop operating. WhatsApp is an intermediary under Section 2(1)(w) of the Information Technology Act, hence, it is assumed to be providing public service. 

It is argued that the new and updated privacy policy of WhatsApp violates the Right of Privacy guaranteed under Article 21 of the Constitution. The Hon’ble Supreme court has declared the Right to Privacy as a “Fundamental Right” under Article 21 of the Indian Constitution, in the case of K.S. Puttaswamy (Retd.) v. Union of India. In this case while delivering the judgment the Hon’ble bench widely interpreted the term “Privacy” as:

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.  Privacy also connotes a right to be Left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy attaches to the person since it is an essential facet of the dignity of the Human being.

 WhatsApp provides a platform where people communicate the most in today’s time and this new updated privacy policy has replaced the “opt-out-policy” which means that from now on, data sharing with Facebook and its group of companies will become a compulsion if one is using WhatsApp. Now, the users will compulsorily share all the information which will include any service-related information, personal information and others. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 deal with the protection of “sensitive personal data or information of a person” which includes such personal information which consists of information related to passwords, financial information, legal documents, diagnosis reports, sexual orientation, trade secret etc. All this information will not be safe and will now be easily accessible by Whatsapp, Facebook and its other companies. 

Moreover, the same is also violative of section 72A of Information Technology Act, 2000. As per Section 72A of Information Technology Act, disclosure of information, knowingly and intentionally, without the consent of the person concerned and in breach of the lawful contract has been also made punishable with imprisonment for a term extending three years and fine extending to Rs. 5,00,000/-. WhatsApp is accessing and disclosing the private, personal and vital information of an individual with other companies with compulsion in its new privacy policy. 

Many petitions have been filed in the Apex Court against this policy and since it is against the fundamental right to privacy, a withdrawal of the privacy policy is feasible and the users should be allowed to give informed consent for collection of their personal data.

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