Whatsapp’s either-or stand on privacy may add to legal troubles, govt decision soon


The Ministry of Electronics and Information Technology (MeitY) is looking into WhatsApp’s announcement that it would over time limit users’ access to their chat lists, incoming voice or video calls if they do not accept the new terms of the privacy policy, according to government officials. A decision on the issue is likely to be made soon, one of the officials said.

On May 7, WhatsApp said it will not delete any accounts that did not accept its updated terms of privacy policy by May 15. On Monday, however, the platform said that though it would not delete the accounts, it would restrict such users’ access to their chat list and they would eventually not be able to answer incoming voice or video calls over the app.

In a notice on its website, WhatsApp said it was continuing to remind those who haven’t had the chance to review and accept the terms, and that after a period of several weeks, “the reminder (that) people receive will eventually become persistent”. The new WhatsApp notice, tech and legal experts said, could be found to be in violation of the country’s laws on abuse of dominant position and is likely to be challenged before a court. “What WhatsApp is essentially doing here is that you either share your data with it or you will not be able to use its services. This is coercion disguised under the garb of ‘consent’, especially considering it is a dominant player,” said Prasanth Sugathan, legal director, SFLC.in.

In January, WhatsApp through an in-app notification told its users it had updated the privacy policy and if they did not accept the updated terms by February 8, they would lose access to their accounts. After protests from users and privacy experts, WhatsApp pushed the deadline to May 15, but said it will continue to remind users to accept the terms.

This was despite the MeitY writing a letter to its global CEO Will Cathcart, asking him to withdraw the updated privacy policy, and later even approaching Delhi High Court.

Meanwhile, the Delhi High Court as well as the Supreme Court are hearing separate pleas filed against WhatsApp’s new privacy policy. Experts believe since the courts have not yet come to a decision in the case, the platform coming out with such a decision could be adversarial for it.

“There are precedents from US courts, where modification of terms even if it’s a free service, to the detriment of users may be struck down as unconscionable. This ‘take-it-or-leave-it’ may not be a sound argument merely because a service is free, more so when the entity itself has invited users to its platforms on the basis of terms of usage which it then seeks to modify,” said Supreme Court advocate N S Nappinai, also founder of Cyber Saathi. Apart from these two cases, the Competition Commission of India is investigating Facebook for abuse of dominant position. The latest WhatsApp decision could land it into further trouble with the courts, Salman Waris, founder and partner at TechLegis said.

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