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2016 Supreme(Del) 3598
IN THE HIGH COURT OF DELHI AT NEW DELHI
G. ROHINI and SANGITA DHINGRA SEHGAL, JJ.
KARMANYA SINGH SAREEN AND ANR – Petitioners
Versus
UNION OF INDIA AND ORS – Respondents
W.P.(C) 7663 of 2016 & C.M.No.31553 of 2016 (directions)
Decided On : 23-09-2016
For the Petitioner: Ms. Pratibha M. Singh, Mr. Sandeep Sethi, with Mr. T. Singhdev, Mr. Prabhas Bajaj, Mr. Tarun Verma.
For the Respondents: Mr. Ruchir Mishra, with Mr. Mukesh Kr. Tiwari, Mr. Siddharth Luthra, with Mr. Tejas Karia, Mr. Akhil Anand, Mr. Vivek Reddy, Ms. Richa Srivastava, Mr. Shashank Mishra, Ms. Tara Narula, Mr. Gautam Khazanchi, Mr. Kirtiman Singh, Mr. Prashant Bezboruah.
Headnote:
Public Interest Litigation - Internet Messaging Application - Sharing data - Prohibition - Scope of - WhatsApp was acquired by the respondent No.3 and a drastic change has been proposed to be made in the privacy policy of 'WhatsApp' - It was proposed that 'WhatsApp' account information would be shared with 'Facebook', a popular free social-networking website - Change in the Privacy Policy of 'WhatsApp' amounts to infringement of the Right to Privacy guaranteed under Article 21 of the Constitution of India - This cannot be a valid ground to grant the reliefs - Legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided - Inconsistency in the decisions on the issue as to whether there is any 'right to privacy' guaranteed under our Constitution, matter is before a larger Bench - Terms of service of 'WhatsApp' are not traceable to any statute or statutory provisions - Issue sought to be espoused is not amenable to the writ jurisdiction - Under the Privacy Policy of 'WhatsApp', the users are given an option to delete their 'WhatsApp' account at any time - In such a case, the information of the users would be deleted from the servers of 'WhatsApp'.
G. ROHINI, J.
1. The petitioners claim to be the users of “WhatsApp”, an Internet Messaging Application, provided by the respondent No.2/"WhatsApp Inc.", a company based in USA.
2. The present writ petition by way of Public Interest Litigation has been filed with the following prayer:
"(a) Issue a writ of prohibition or any other writ or direction in the nature thereof prohibiting respondents No. 2 to 4 from sharing, in any manner whatsoever, details and data of every kind of the subscribers/users of WhatsApp with any entity including Facebook or its family of companies;
(b) Issue a writ of mandamus or any other writ or direction in the nature thereof directing the respondent 1 and 5 or any other appropriate authority to discharge their executive, statutory and all other obligations in relation to protection and safety of privacy of details/ data of every kind of the subscribers/users of WhatsApp all over the territory of India by taking all necessary steps/actions in discharge of their executive as well as statutory functions including by framing rules/regulations/guidelines for the protection of rights of citizens including the safeguarding and securing the privacy of citizens by ensuring that mobile application providers such as "WhatsApp" and other internet based messaging services do not compromise, share and/or exploit the information and data including messages, audio, video and other information of users in any manner whatsoever.
(c) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No.1 and 5, to take all actions including steps towards making Rules under Section 87 of the Information Technology Act, 2000 so as to regulate the functioning of Respondents No.2 to 4 and other similarly placed internet based messaging services including their Privacy Policy for handling of or dealing in personal information including private messages/photos/conversations/audio messages/videos/ documents & data so as to ensure that the privacy rights of the users are not compromised and are duly protected;
(d) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing Respondents No.2 to 4 to obtain/secure the consent of only those Users who are willing to specifically write to WhatsApp [upon clearly understanding/ comprehending the import and extent of the sharing of data/details of the Users proposed in the new Policy of WhatsApp] and the complete/absolute privacy and not sharing details/ data in any manner whatsoever - must remain continued for all other Users of WhatsApp;
(e) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No.1 and 5, and any other authority, to formulate appropriate Guidelines so as to regulate the functioning of Respondents No.2 to 4 and other similarly placed internet based messaging services including their Privacy Policy for handling of or dealing in personal information including private messages/photos/ conversations/audio messages/videos/documents & data so as to ensure that the privacy rights of the users are not compromised and duly protected;
(f) Issue a writ in the nature of mandamus or any other writ or direction in the nature thereof, directing the Respondents No.1 and 5, and any other authority, to formulate appropriate Rules/Guidelines so that it is made mandatory for Respondents No.2 to 4 and other similarly placed internet based messaging services to duly inform its users about the actual and true import of their Privacy Policy in respect of the information provided/shared by the users and further to safeguard the rights of minors;
(g) Issue a writ of prohibition or any other writ or direction in the nature thereof prohibiting and restraining Respondents no.2 to 4 from discontinuing availability of WhatsApp's service to all those users who do not respond to the so-called consent being sought by WhatsApp for changing the
