Libertatem Magazine

Whatsapp Data and Article 21 :- A Story of Betrayal?

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Article 21 is in jeopardy. There is a right to privacy which is being violently contended before the Supreme Court by eminent lawyers. Aadhaar is the second issue that is being taken up before the Supreme Court. Does making adhaar mandatory and its subsequent linking with the Birth, Death and what not, would be an infringement of our rights? All these questions are rising up before the court one after another.

Now, there is an another case that has been raised by two students :- Karmanya Singh Sareen and Shreya Sethi. They were represented by Harish Salve, the senior counsel. The main issue was whether 2016 Whatsapp policy violates Article 21 and 19 as it shares the user data with Facebook.


Thus, the main contention was whether the data protection under Article 21 and 19 (freedom of speech)?

Judgment :- Senior advocate Kapil Sibal, for WhatsApp, told the bench that the mobile application was not at all against a regulatory regime and no user data was shared on the instant messaging platform.[1] The problem, Salve contradicted, is that WhatsApp can read the data. It is collecting meta data and also, involved in profiling data.

The bench comprising of Justices A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar observed that it would have to draw a line on where data could be used and where it could be misused.[2] Data of user is connected to the personality and it is an integral part of Article 21. The court distinguished it from the right to privacy and left it to be considered when the matter that was already sub judice before the court is decided. Nevertheless, the court stated that :-

We have already said that do not link privacy issue with this.  This case can be argued on another platform. I have a choice. You have a facility. When you are giving a facility, you cannot impose arbitrary conditions.”

Further, the Central Government held that they would develop a regulatory mechanism to oversee such platforms that requires data protection. Additional Solicitor General P S Narasimha told a five-judge Bench.

“My (individual) personal data is intimate to me. It is an integral part of my right to lead a life with dignity. If there is any contractual obligation between the individual and the internet service provider and it impinges on the individual’s right (under Article 21), State will have to intervene and regulate sharing of such data,”[3]

Learning Outcome

Without entering into the discussion of right to privacy, the court held that the data protection was a liability on the online platforms as per Article 21.




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