Arguments Summary Day 1: July 21, 2017.

Today, a 5-Judge Bench, consisting of Justices Dipak MisraA. K SikriAmitava RoyA. M. Khanvilkar and M. M. Shantagoudar heard arguments on maintainability of the writ and the need for a regulatory regime for data sharing services provided by large corporations. Questions related to the applicability of fundamental rights were also discussed.

Mr Harish Salve, representing the petitioners, began by arguing that the writ is maintainable as the relief is sought against the State. Irrespective of whether privacy is a fundamental right, a common law right to privacy exists. Hence, the State must regulate data sharing and enact legislation to protect privacy rights. Just as a courier delivery person cannot open the sender’s letter and read it merely by virtue of being a service provider, the same logic must apply to WhatsApp and Facebook. He concluded that the State must legislate to curb their quasi-monopoly and the Court must clarify the broad parameters of such regulation.

Mr Arvind Datar, representing Facebook, began by clarifying that although Facebook has acquired WhatsApp, ‘not a single comma or word’ has been shared between them so far, or will be shared in the future. Mr Sibal, representing WhatsApp, went further and said that he is ready to have a statement recorded to that effect. They argued that other services should also be included as Respondents to get a ‘complete picture’ about designing a regulatory framework. Other apps have pop-ups requesting access to user contacts yet there are no complaints against them. Even the Government should be included as Respondents, as the ‘Bhim’ Application accesses user data. Justice Misra responded that the case cannot be thrown out merely on the ground that similar persons are not made parties. Mr. Sibal agreed, but cautioned that not including other companies would open up a Pandora’s Box. Moreover, it is difficult to function in an ambiguous atmosphere while a regulatory regime is being shaped. When Mr. Datar suggested that a regulatory regime already exists, Justice Misra insisted that it was inadequate as it does not recognize that service providers have a public duty towards their users, and free access cannot curtail their privacy obligations.

Mr Narsimha, Additional Solicitor General (ASG), affirmed that the Government is ready to implement a workable regulatory regime. If it the Government fails to do so, the Court can pass an order it thinks fit. He insisted, however, that the Petitioners must make specific substantive arguments outlining the regulatory regime.

Mr Salve referred to Modern Dental College to stress on the need for regulation and oversight of large corporations especially as other countries have taken steps against data sharing by WhatsApp. Unregulated access to and sharing of user data would allow WhatsApp to use the metadata from a conversation between a psychiatric patient and their doctor to develop profiles of all parties involved. Even if other service providers access and share user data, it does not make the practice right. Under current regulations, Internet Service Providers cannot use data on their networks with impunity and compromise safety.

Mr Salve referred to Professor Laurence Tribe on the different manifestations of State power. A teacher raising a hand to stop traffic while her students cross the road exercises public power. Similarly, telecom companies exercise public power even if they are motivated by commercial purposes. Entities and companies may have commercial motivations, but if they provide a public service, they can and must be regulated.

Mr Salve insisted that the myth of a private contract needs to be attacked when it affects constitutional rights under Articles 14, 19, and 21. Justice Misra agreed that contracts with unconscionable terms violate Article 14. He wondered whether it was acceptable to have contractual clauses that take away choice and impair human dignity. The ASG agreed that data is integral to one’s personality and must be protected under Article 21. If a contractual provision impinges on data, it impinges on the right to life.

Mr Sibal suggested that the Court may be approached when there is a misuse of data, but was skeptical about a preemptive remedy against the possibility of misuse. Justice Misra responded that if the privacy policy of WhatsApp violates Article 14, then it is immaterial whether an injury has been suffered or not.

The matter is scheduled to be heard next on September 6, 2017.