The Union government told the Delhi High Court that WhatsApp, which became an "essential digital service" during the COVID-19 pandemic, was now obtaining "trick consent" from its users for its updated 2021 privacy policy ahead of the pending Personal Data Protection (PDP) Bill becoming a law. The Centre claimed this was being done under a game plan to transfer the existing users committed to its policy.
It emphasised that WhatsApp is indulging in anti-user' practices by obtaining "trick consent" from its users for its updated privacy policy. "It is submitted that millions of WhatsApp existing users, those who have not accepted the updated 2021 privacy policy are being bombarded with notifications on an everyday basis," said the affidavit, citing a screenshot of the push notification and urged the court to restrain WhatsApp from "pushing notifications" to its users.
In its additional counter submitted to the High Court, the Centre said: "The respondent no. 1 (WhatsApp) has unleashed its digital prowess to the unsuspecting users and would like to force them to accept the updated 2021 privacy policy. The game plan is very clear, i.e, to transfer the entire existing user committed to updated 2021 privacy policy before the Personal Data Protection (PDP) Bill becomes the law."
The Centre added that WhatsApp is currently having access to personal, sensitive personal and business data of hundreds of millions of Indian users and has also acquired a role of "essential digital service" during COVID-19 pandemic. Therefore, it is imperative that WhatsApp privacy policy should be examined on the touchstone of privacy principles as laid down in K S Puttaswamy verdict, the affidavit added.
The Centre added that the Competition Commission of India (CCI) has formed a prima facie opinion that WhatsApp has contravened the provisions of Section 4 of the Competition Act, 2002 "through its exploitative and exclusionary conduct, in the garb of policy update". The CCI had said a thorough and detailed investigation is required to ascertain the full extent, scope and impact of data sharing through involuntary consent of users.
"The current notifications as being pushed by the respondent no.1 on its users whether existing or new is against very grain of prima facie opinion of the CCI order," added the affidavit. The affidavit was filed on a PIL by Seema Singh, Meghan and Vikram Singh seeking a direction to the Centre to order WhatsApp to either roll back the new privacy policy or provide an opt-out option to its users.
The Centre had said the new updated privacy policy violated the Information Technology Rules of 2011 and WhatsApp may be restrained from implementing the new policy till the challenge to the validity of its policy is finally decided.
The Centre had introduced the PDP Bill, 2019 in the Lok Sabha. "Upon enactment, this law will provide a robust regime on data protection which will limit the ability of entities such as respondent no. 1 issuing privacy policies which do not align with appropriate standards of security and data protection," said the affidavit.