Ahead of WhatsApp-Facebook Ruling, India Holds Privacy Fundamental

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By Madhur Singh

A nine-judge bench of the Supreme Court of India ruled Aug. 24 that privacy is a fundamental right and that “informational privacy is a facet of the right to privacy,” a decision that promises to influence a pending lawsuit over social media data sharing.

The ruling sets the stage for a final resolution of ongoing litigation over WhatsApp’s sharing of subscriber data with its parent Facebook Inc., which is slated for a court hearing Sept. 6. But other online companies, including Twitter Inc., also likely face closer regulatory scrutiny and the potential for a flood of litigation over corporate data-sharing practices, privacy attorneys told Bloomberg BNA.

The ruling “will have a tremendous impact on the privacy practices of any and all companies collecting data in India and from Indians,” Asheeta Regidi, a cyberlaw consultant and certified information privacy professional, told Bloomberg BNA.

The Verdict

The 547-page order from Chief Justice J.S. Khehar, who headed the rarely-deployed nine-judge Constitutional Bench, said the right to privacy is fundamental under the Constitution. However, “it is not an absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law,” the opinion said.

The “right to privacy” has multiple facets, and privacy complaints should be considered on a case-to-case basis, the opinion said.

The opinion leaves room for court interpretation of the WhatsApp case and other privacy issues currently being litigated, including the government’s collection of citizen data under Aadhaar, its biometric identity card program.

The case began when students challenged WhatsApp’s privacy policy revision in August 2016 that allowed it to share data with Facebook, which acquired WhatsApp in October 2014 for $21.8 billion.

A five-judge bench, which includes Khehar, that is hearing the challenge to Aadhaar had referred the question of whether privacy is a fundamental constitutional right to the nine-judge bench.

Addressing Uncertainty

While a government committee works to finalize a privacy framework statute, there will be a period of uncertainty about how the ruling will play out for corporate privacy compliance.

Aarthi S. Anand, a corporate and technology transactions attorney at Wiggin & Dana LLP in New York, told Bloomberg BNA that legal uncertainty in India would make it difficult to advise companies on data collection and use issues. Those are “the types of questions that lawyers are asked by companies and clients every day,” she said.

A drawn-out legislative drafting process is “particularly unsuitable for the fast-paced technology industry,” she said.

Prashant Mali, a lawyer in the Bombay High Court and a cyber policy consultant, told Bloomberg BNA that uncertainty might lead to a “flood of frivolous challenges.”

Regidi said companies in India may want to preemptively assure consumers that they are enhancing privacy protection.

To contact the reporter on this story: Madhur Singh in Chandigarh, India at correspondents@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

The court's opinion is available at http://src.bna.com/rWM.

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