Guest Post: Decoding the WhatsApp/Privacy Case

(In this Guest Post, Praharsh Johorey examines some of the key issues in the pending WhatsApp/Privacy case before the Constitution Bench of the Supreme Court)

Once the Supreme Court re-convenes after its vacation, it will begin hearing arguments on an appeal concerning privacy issues stemming from the use of ‘WhatsApp’, a popular instant messaging application. The petition against WhatsApp originally filed before the Delhi High Court challenged as unconstitutional a change made to WhatsApp’s Privacy Policy in August 2016, which allowed it to send all collected data to its parent company, Facebook. It was claimed that this breached the ‘Right to Privacy’ of all citizens under Article 21, and restricted their freedom of speech under Article 19(1)(a). Recognising the legitimacy of these claims, the Delhi High Court issued the following directions to the owners of WhatsApp on the 23rd of September, 2016:

  1. i) If the users opt for completely deleting “WhatsApp” account before 25.09.2016, the information/data/details of such users should be deleted completely from “WhatsApp” servers and the same shall not be shared with the “Facebook” or any one of its group companies.
  2. ii) So far as the users who opt to remain in “WhatsApp” are concerned, the existing information/data/details of such users upto 25.09.2016 shall not be shared with “Facebook” or any one of its group companies.  

The Petitioners filed an appeal before the Supreme Court against these directions, claiming that they only do ‘partial justice’, and create an unreasonable distinction between WhatsApp users solely on the basis of when they began using its services. This petition invariably raises questions of the ‘Right to Privacy’, rights of digital users and freedom of speech online under Article 21 – and its position under the Indian constitution. However, there exists voluminous literature on the implied existence of such a right, such as here, here and here; and the question of reading this right under the Constitution is also sub-judice before a Constitutional Bench of the Supreme Court in K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors.

Instead, this essay concerns itself with the following questions:

  • Does the Supreme Court have the jurisdiction to intervene in a contract entered into between two private companies; i.e. WhatsApp and its subscribers?
  • Assuming such jurisdiction exists, whether the Supreme Court should intervene in contracts between private parties – and does the relationship between telecommunication companies and private consumers requires such intervention.

I will examine each question separately.

Special Leave Petitions and Jurisdictional overreach

The Petitioners have approached the Supreme Court under Article 136, which allows it the power to grant a ‘special leave to appeal’:

  1. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

In the present case, the Supreme Court has constituted a Constitution Bench (Five Judges) to hear the appeal against the order of the Delhi High Court – having granted a special leave to appeal under Article 136. The original petition was filed as a Public Interest Litigation before the Delhi High Court under Article 226. The Respondents, WhatsApp and Facebook contended that the High Court did not have appropriate jurisdiction to hear the petition because neither company is a public body discharging public functions, and therefore not amenable to constitutional scrutiny. The observations of the High Court indicate an agreement with this contention:

  1. In fact, the users of “WhatsApp” and the Respondent No.2 (Whatsapp itself) are parties to a private contract and the users of “WhatsApp” having voluntarily opted to avail the services of the said Application, are bound by the terms of service offered by the Respondent No.2…. it appears to us that it is not open to the users now to contend that “WhatsApp” shall be compelled to continue the same terms of service.
  2. Even the ‘Right to Privacy cannot be a valid ground to grant the reliefs as prayed for since the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided.’
  3. Since the terms of service of “WhatsApp” are not traceable to any statute or statutory provisions, it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.

However, the unambiguous conclusion arrived at by the Court concerning its jurisdiction under Article 226 was swiftly ignored, with the Court proceeding without explanation to issue directions binding upon Whatsapp. As a result of this demonstrably unclear stance, the question of jurisdiction has now been raised before the Supreme Court – questioning the very ability of the Court to intervene in private acts of private parties.

Whatsapp and Direct Horizontality

In his essay on ‘Horizontality under the Constitution’, which can be found here, Gautam Bhatia notes that constitutional rights are deemed to regulate the relationship between individuals and the state, i.e. ‘vertically’. However, with the gradual expansion in the role of the private sector in our daily lives coupled with the simultaneous withdrawal of the State from several sectors, there has emerged a need to subject private relationships to constitutional scrutiny; i.e. impose ‘horizontality’. With respect to Whatsapp, the situation involves regulating a private act (the contract to join Whatsapp) which private citizens consent to – which is different from the Court holding the State responsible for moulding conduct of private parties in accordance with the Constitution as in Vishaka v. State of Rajasthan, or altering laws to which private parties are subject such as in R. Rajagopal v. State of Tamil Nadu. Thus, the Court could impose what is known as ‘direct horizontality’ – where the private act of a private party is challenged on grounds of the Constitution.

A similar question was posed to the Supreme Court in relation to the functioning of the Board of Cricket Control in India (“BCCI”) – and whether the legality of its activities could be judged on the cornerstone of the Constitution. In both cases relating to the BCCI, Zee Telefilms Ltd. & Anr vs Union Of India & Ors and BCCI v. Cricket Association of Bihar, extensive discussion took place as to whether the BCCI could be considered as a ‘State’ under Article 12. However, no question has been raised as to Whatsapp’s status as a private entity. Therefore, the Court’s observations in respect of the constitutional obligations of the BCCI as a non-state entity are crucial. In paragraph 30 of the Zee Telefilms case, Hegde J. notes:

‘But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.’

Subsequently, in the BCCI judgement, Thakur J. observes:

Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a nongovernment body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.

A joint-reading of these two observations leads to the irresistible conclusion that only those private bodies that discharge ‘public functions’ are amenable to claims under Article 226, and not under Article 32. Thus, the Court’s interpretation contemplates a situation where the claim must change depending on the forum one is before; which surely was not contemplated by the drafters. Thus, the only permissible reconciliation of this position is that private parties performing public functions can be made subject to general public law standards (good faith, non-arbitrariness) which may overlap with Part III – particularly Article 14, 19 and 21; but does not imply Judicial review in respect of all provisions of Part III. At minimum, a litigant aggrieved with a Private party cannot go straight to the Supreme Court under Article 32, but must first go to the High Court under Article 226 to enforce the aforementioned administrative law standards.

Instant Messaging and the ‘Public Function’ Test

However, prior to examining which provisions of Part III the Privacy Policy may fall foul of, we must first examine whether Whatsapp can even be considered as fulfilling the ‘Public Function’ test. In Sukhdev and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. the Court was required to determine whether the Oil and Natural Gas Commission, Indian Finance Corporation and the Life Insurance Corporation, all of which are statutory organisations, were entitled to claim protection under Part III. The Court held that they were, stating:

Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.

As referenced earlier, there is no argument that WhatsApp is an instrumentality of the State under Article 12 – as it is neither part of the State apparatus, nor is it considered an instrumentality or agent of the State itself. Therefore, the question to be resolved is whether providing a platform for communication can be considered to be a ‘public function’ – making it amenable to 226 jurisdiction. Two facets of this question are important: first, the nature of communication services as a public good, and second, whether WhatsApp is necessarily required to exercise ‘control’ over this service to be regarded as discharging a public function.

It is undeniable that telecommunication plays a crucial role in 21st century society. A denial of all telecommunication services to society for a single day would impact global communication, impair business and disrupt the Economy – not to mention the significant mayhem it may cause in the process. Consequently, it is more than arguable to suggest that the organisations providing telecommunication services are collectively performing a ‘public function’. The Supreme Court noted that in the context of the BCCI, it was three factors – complete control over cricket, significant financial investments and state support – that lead to the determination of it discharging a public function. However, note must be made here of the unique nature of cricket in India, in that it represents a ‘primary cultural good’ (Parthasarathy); and that BCCI’s complete control over the sport in India represented its power to control access to this basic human good.

To apply this test of ‘control of basic goods’, one must understand the nature of instant messaging in India, and whether it can be said that WhatsApp exerts a comparable amount of control over this service. A majority of Indian internet users (63% of the people surveyed, MEF Survey 2016) currently rely upon WhatsApp as their primary communication device – nearly 200 million consumers. However, having significant market share is not a sufficient indicator of whether WhatsApp exercises ‘control’ over the utility in India. Unlike the BCCI, WhatsApp cannot be said to have any legitimate role to play in the governance, regulation or administration of this sector, and does not (yet) have a recognised monopoly over the utility. If WhatsApp were recognised as being the sole provider of all instant communication services to Indians, it could have been contended that its control over a public utility renders it amenable to 226 jurisdiction. However, holding so in the present context would set a dangerous precedent of all popular services being considered as effectively discharging a public function; not necessarily limited to the nature of service in question.

Re-writing Private Contracts

Even accepting that the Supreme Court has the jurisdiction to adjudicate the Whatsapp petition, one must consider the propriety of the Judiciary intervening in private contracts. It is undisputed that the millions of customers that accepted WhatsApp’s new privacy policy did so voluntarily, having accepted the terms and conditions clearly established. Resultantly, if the Supreme Court were to issue directions to WhatsApp changing the terms of such policy, it is intervening in a voluntary agreement entered into between two private parties.

However, such a situation is not unprecedented. The Supreme Court has made a number of determinations that change the very basis of private contracts – doing so particularly frequently in the context of labour contracts. In the year 2016, it mandated in State of Punjab v. Jagjit Singh that employers must ensure ‘equal pay for equal work’, holding:

It was held, that the Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It was pointed out, that a casual labourer who had agreed to work on such low wages, had done so, because he had no other choice.

Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

The justification for intervening in a private contract therefore stems from two factors – first, the coerced consent of the labourers who have ‘no other choice’ and second, from the ‘domineering position’ of the employers who have the power to ‘enslave’ these workers. As a result, the Court intervened to protect the otherwise defenceless labourers from the exploitative practices of the employers. A similar line of argumentation has been placed before the Supreme Court by the WhatsApp petitioners – in that WhatsApp enjoys a dominant position in the instant messaging space, and its consumers are therefore have no option but to be subject to its exploitative data practices. The Supreme Court also echoed this sentiment in one of the hearings, warning WhatsApp against ‘consumer entrapment’.

However, this line of argumentation misses the key facet of consumer choice – something evidently absent in the minimum-wage labour market. Consumers are constantly advertised a number of different services that provide nearly perfect competition to WhatsApp, and are allowed free migration across these platforms. Moreover, there is no legal reason why consumers who use a platform like WhatsApp should not be allowed to waive their right to keep their data secret in exchange for using an evidently useful service. Any consumer who is dissatisfied or uncomfortable with the terms of use of such an application is legally allowed to exit its operation – making the case for judicial intervention in such a contract untenable.

Conclusion

It is not my position that we should not have a right to privacy, or that WhatsApp’s Privacy Policy is desirable. However, to entertain and adjudicate such a petition on its merits would require the Supreme Court to significantly extend its jurisdiction – and begin upon an already slippery slope of subjecting private parties to constitutional provisions. Instead, it is my position that the legislature should enact a comprehensive Data protection framework that would forbid companies from transferring data of its consumers without their express authority – and then allow the Judiciary to adjudicate disputes on such basis. By broadly invoking Article 21 and Article 19 for all privacy disputes, we risk allowing several private companies from getting away with privacy violations that are actionable in most other jurisdictions.

Who said creating a ‘Digital India’ would be easy?

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2 Comments

Filed under Article 226 Remedies, Communications Technologies, Judicial Review, Jurisdiction, Public goods

2 responses to “Guest Post: Decoding the WhatsApp/Privacy Case

  1. Pingback: I·CONnect – What’s New in Public Law

  2. Prakhar Gupta

    This response is to your argument of consumer choices, “Consumers are constantly advertised a number of different services that provide nearly perfect competition to WhatsApp, and are allowed free migration across these platforms. ” TO this contention of yours i would beg to disagree.

    Any Consumer communication application, that the person who wants to communicate as well as to whom person wants to communicate both must have installed the application, registered with the application, added each other to their contact list. All of which requires significant time. Further another person may not even have another substitute of it available, thus person may not be able to substitute another application for the product of OP. Thus in theory it might be possible to switch from one application to another, there are various practical barriers present, which prevent user passing on from one application to another.

    High Switching Cost from one application to another

    Cost of switching from WhatsApp to another Consumer Communication App is significant and visible.

    As any consumer communication application requires that users on both the ends have the same Consumer Communication Application. Thus if one consumer has it and the other doesn’t, they wont be able to interact using that consumer Communication app. Whole success and failure of any particular consumer communication app depends on how many people are using it, because the one most popularly being used is likely to attract more and more users, and the one with less number of users is not likely to attract new users.

    And even if consumer switches to another application for the same purpose, he/she is unlikely to find large number of users of the same, and thus the purpose of consumer communication application is defeated.

    WhatsApp has 2.3 times users than its rival Hike (which can be said to be closes alternative in relevant market). Which means any user giving up WhatsApp in favour of Hike would loose out more than 57% of contacts, because the other would not have the same consumer communication application, thus making it unpopular option as most people don’t view it as popular medium. Thus even if a person wants to whole willing leave the platform he/she is unable to do so viewing the high cost that needs to be paid, in terms of loosing contact with large number of people.

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