Supreme Court asks WhatsApp, Facebook to file affidavit on user data

A five-judge Constitution Bench of the Supreme Court on Wednesday directed social media service providers WhatsApp and Facebook to file an affidavit in four weeks stating what data they were gathering about millions of users and whether they were sharing it with any third-party entity.

The Bench, presided by Chief Justice Dipak Misra, issued the directive in view of the recent nine-judge bench judgment that upheld the right to privacy as a fundamental one.

The apex court also issued a notice to Google on a new petition alleging that the search engine had violated the right to privacy. The court stated that after receiving the affidavits, it would decide what order could be passed. The next date of hearing is November 28.

The central government told the court at the start of arguments that a committee headed by former SC judge B N Srikrishna was studying the implications of privacy rights in the social media and internet.

Additional Solicitor General Tushar Mehta asked the court to wait for its comprehensive report before passing any order. The issue of privacy in the electronic media, he argued, was complex and not judicially manageable.

Kapil Sibal, senior counsel for WhatsApp, supported this request. Sibal said judges would not be able to handle the technical complications and the court should wait for the expert committee's report. He said only the phone number, device number, photo and the last access time were available with the service providers. This statement was recorded by the court in its order. The court further asked the service providers to declare what important personal data they were not storing.

Arvind Datar, counsel for Facebook, holding company of Whatsapp, stated there was no complaint from any consumer about violation of privacy.

According to the two service providers, there was end- to-end encryption and no content was shared with third parties for commercial use. Google had more information about the users than the two service providers, Sibal said. He further argued that phone numbers and photographs were available with any agency, like banks and credit card companies.

The petitioners asked the court to pass an order restricting the sharing of data in view of the privacy judgment.

K V Viswanathan, their counsel, said the two companies were collecting metadata and sharing them with commercial entities.