Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Key takeaways

● The Indian government told the Delhi High Court on Monday that the latest WhatsApp privacy policy violates Indian IT rules.
● Users who have not approved the new policy will not have their accounts deleted immediately, according to the messaging website.
● The updated WhatsApp privacy policy went into effect on May 15th.
● The petitions questioning WhatsApp’s new privacy policy were heard by a division bench consisting of Chief Justice DN Patel and Justice Jyoti Singh.


Introduction

WhatsApp has told the Delhi High Court that its revised privacy policy, which will take effect on May 15, will not be postponed. Senior Advocate Kapil Sibal made a submission to this effect, claiming that WhatsApp was attempting to persuade users to accept the new policy.

During the hearing of the challenge to WhatsApp's latest privacy policy, Chief Justice DN Patel and Justice Jyoti Singh were told of the same. Additional Solicitor General Chetan Sharma told the Court that there were complaints that the policy was in breach of the Information Technology Act, 2000 and its Rules. He said the Centre had written to the company's CEO and was waiting for a response.

Senior Advocate Arvind Datar, who appeared alongside Sibal for WhatsApp, objected to Advocate Manohar Lal's contention that users who had not consented to the privacy policy were not allowed to use the app. He went on to say, "We can claim unequivocally that our privacy policy does not breach the IT Rules, and we can proceed rule by rule."


Details of the case

● We haven't said we won't enforce the policy; in reality, we've stated that the deadline is May 15th and that we'll convince WhatsApp users to join. If they really don't, we have the right under the law and the laws to tell you that you shouldn't use WhatsApp." Sibal, the Senior Counsel, said.

● The submissions were made in response to Sr Adv Vivek Sood's statement on May 14th, stating that WhatsApp will not enforce the policy of January 4, 2021, for the next few weeks.

● "WhatsApp serves or nearly a third of the country's population. And you're claiming the policy won't be implemented for a few weeks. Perhaps they are aware of the PIL that is currently before your Lordships. In the meantime, they will not share any details with their group's Facebook page. Allow respondents to make a comment." Sood explained.

● Senior Advocate Datar objected, stating that offering any undertaking is out of the question. He went on to say that they would justify why the privacy policy hasn't changed at all. The Centre's ASG Sharma argued that the government is in breach of the IT Act and laws and that the counter-affidavit reveals the violations.

● They issued a denial, which was picked up by the media. But it's fine if Mr Sibal wants to justify or deny it; it's his option and prerogative. We're not going to get in the way of that." ASG Sharma made a statement.

● The petitions questioning WhatsApp’s new privacy policy were heard by a division bench consisting of Chief Justice DN Patel and Justice Jyoti Singh.


Implementation of the policy

● When the Bench was disconnected during the trial, Counsels conversed between themselves, and ASG claimed that there was contact on WhatsApp's website about the website's deferment.

● Sibal clarified that the 15th of May has not been deferred, as specified in the affidavit and explained in FAQs. Users will be encouraged to follow the scheme, but if they refuse, they will be removed from the system.

● "Why persuade them if there's no deferment?" ASG wondered. "We can always convince them," Sibal replied, "as per the laws if they don't agree, we can disconnect them."

● Mr Sibal reiterated that the firm response is that there will be no deferral on May 15th; all that has been said is that their accounts will not be removed on the 15th and 16th of May, and they will be convinced. However, if they do not comply, they will be gradually removed.

● According to Adv Kirtiman Singh's comment, the policy notes that if they are unable to persuade customers, they will be disconnected.

● Each consumer/customer will be dealt with separately, according to Sibal. It isn't a conscious decision to disconnect anyone. Each customer will make his own decision. ASG Sharma testified before the Court that a note on WhatsApp's official website states that the company will continue to send updates to users in the coming weeks to inform them about the policy, but that accounts will not be deleted.

● There is a guarantee that they will not intrude on the privacy of chats, messages, or phone calls.

● "With this as the foundation, if Mr Sibal chooses to state and confirm that their clients will comply with Indian law and the rules enacted thereunder, and Mr Datar files the counter affidavit, the counter filed in one of the matters be taken as the Union's stand, the matter could be heard next Monday."

● Senior Advocate Datar also requested that the case be heard on Monday so that they may state unequivocally that no privacy breaches or compromises have occurred, and that all concerns are unfounded.


Issue of the public policy under Indian Laws

● "We've written to them to comply with Indian laws, and a response is awaited," ASG said during the hearing. The fact of the matter is that there has always been a privacy policy in place. India has the most political WhatsApp users, and there is an immediate need to preserve the status quo before the court hears the case.

● According to Adv Manohar Lal, they have only partially their scheme. Users that have not agreed to the privacy policy are not permitted.

● Mr Datar reacted angrily to the remark, claiming that the matter was still before the Supreme Court. Disagreeing with Datar's comment, Adv Manohar Lal argued that the case before the Supreme Court is about the 2016 policy.

● Senior Counsels Datar and Sibal both objected to the assertion, claiming that it is entirely false, given that the new policy has been questioned as well.

● Adv Lal claimed that they are sharing information with third parties and not removing information that has been shared with third parties or someone who reposts the consent as the recipient of that information.

● According to ASG Sharma, there has been a deferment, according to news reports.

● "Can Whatsapp today confirm that its privacy policy complies with the Information Technology Act of 2010 and the regulations promulgated thereunder?" ASG enquired.

● Sibal replied, "Yes, we confirm." "If that's the case, please file the affidavit." As mentioned by ASG.

● According to Datar, the court could give them a week and they would file a comprehensive affidavit.

● "Let them point out where we've broken the rules, and we'll answer." Mr Sibal mentioned the following.

● The problem in this case, according to Sr Adv Vivek Sood, is whether India has a public policy on privacy, and if so, whether it applies to the WhatsApp terms of service in India.

● Sood went on to say that the Supreme Court had recognized the right to informational privacy in the Puttaswamy decision.

● At this point, the Bench inquired if all answers in all three matters before the Court had been filed.

● No pleadings should be left unfinished until the arguments begin. After that, we won't allow you to reply. "Ask for time if anyone wants time to file a reply," the Bench advised.

● Following the Court's decision to hear the case on June 3rd, ASG Sharma clarified that Mr Data and Mr Sibal's statements that their clients would follow Indian law would be registered and that no accounts would be removed.

● Sibal stated that they have been and will continue to adhere. He also objected to ASG's request for status quo as of today, arguing that they would be granted a stay in that situation.


The Notice issued by the High Court

● The Bench was reminded that one of the petitions had not been served with a warning. The Bench provided notice in one of the cases (Chaitanya Rohilla vs Union of India), which is a petition seeking guidance for the framing of rules or guidelines to protect citizens' privacy and data from all apps and organizations operating in India, as well as a choice to be given to users each time data is collected from them.

● The case has been scheduled for June 3rd, and the Bench has ordered that all pleadings and answers be filed in the meantime. "You file it even though it's a repeat," CJ said.
 


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