High Court of Delhi

Karmanya Singh Sareen and Anr. v. Union of India and Ors.

MANU/DE/2607/2016

23.09.2016

Civil

Parties to a private contract and users of "WhatsApp" having voluntarily opted to avail services of said application are bound by terms of service offered

Petitioners claim to be the users of “WhatsApp”, an Internet Messaging Application, provided by Respondent No.2/"WhatsApp Inc.", a company based in USA. Petitioner pleaded that "WhatsApp" was acquired in year 2014 by Respondent No.3/"Facebook Inc.". It is alleged that after "WhatsApp" was acquired, a drastic change has been proposed to be made in privacy policy of "WhatsApp" and users were put on notice in August, 2016. Users were asked to agree to terms and privacy policy by 25th September, 2016 to continue using "WhatsApp". Said action is assailed in instant writ petition contending that, proposed change in privacy policy of "WhatsApp" would result in altering/changing most valuable, basic and essential feature of "WhatsApp" i.e. complete protection provided to privacy of details and data of its users. Further submission that, unilateral action of Respondent Nos.2 to 4 in taking away protection to privacy of details and data of users of "WhatsApp" and sharing same with "Facebook" and all its group companies for purpose of commercial advertising and marketing amounted to infringing fundamental rights of users guaranteed under Article 21 of Constitution of India.

"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. Respondent No.2 which launched "WhatsApp" as well as Respondent No.3 which acquired same subsequently are private entities. In fact, users of "WhatsApp" and Respondent No.2 are parties to a private contract and users of "WhatsApp" having voluntarily opted to avail services of said Application, are bound by terms of service offered by Respondent No.2.

Since, terms of service of “WhatsApp” are not traceable to any statute or statutory provisions, it appears that, issue sought to be espoused in present petition is not amenable to writ jurisdiction under Article 226 of Constitution of India. Under Privacy Policy of “WhatsApp”, users are given an option to delete their “WhatsApp” account at any time, in which event, information of users would be deleted from servers of "WhatsApp". Therefore, it is always open to existing users of "WhatsApp" who do not want their information to be shared with "Facebook", to opt for deletion of their account.

In view that, issue relating to existence of an individual's right of privacy as a distinct basis of a cause of action is yet to be decided by a larger Bench of Supreme Court vide K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors., (2015) 8 SCC 735, High Court disposed off the Petition by issuing directions to protect interest of users of "WhatsApp".

Relevant

K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors., (2015) 8 SCC 735

Tags : Privacy Right Information Sharing

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