Explained: The war between WhatsApp and Indian government

Instant Messaging Application WhatsApp confrontation with the government of India has taken a new twist with the Facebook-owned firm challenging the Indian government against the constitutional validity of the recent IT rules, which mandated tracing the origins of messages. 

According to WhatsApp, this would break end-to-end encryption and violate the privacy of individuals.  

On Tuesday, May 18, the government of India warned Facebook-owned messaging giant WhatsApp to withdraw its controversial privacy policy. This is the second time that the Indian government has issued a warning against WhatsApp. 

The Ministry of Electronics and Information Technology gave the instant messaging giant a seven-day ultimatum to respond, following which necessary steps will be taken in accordance with the law. 

In reply to the above, WhatsApp has refused to withdraw its new privacy policy that was implemented on May 15. 

The Facebook-owned instant messaging app has found a middle ground solution for the time being and said it would not limit the app's functionality for those who do not accept the new policy.

WhatsApp had earlier stated that it would delete those accounts which failed to comply with the new privacy policy. Following a severe backlash, they then changed their stand and said that they would limit some functionalities of the app for those who failed to accept their terms. However, even this stand has been withdrawn now.

The Srikrishna Committee had drafted the Personal Data Protection bill back in 2018. This bill was influenced by the General Data Protection Regulation by the European Union. This bill was in response to the mandate given by Supreme Court to the Indian government to recognize Privacy as a Fundamental Right. 

If the bill comes to force, it will give excessive data protection rights to users and will pose severe limitations to collecting and processing any form of personal and sensitive data. This has also been witnessed in force as per the General Data Protection Regulation (GDPR), which does not allow WhatsApp to share its data with anybody. 

However, the lack of privacy law is providing armour for WhatsApp, which now is defending itself by saying that it will not make any changes to its new privacy policy unless the Data Protection Bill becomes a law.

So, what was in the May 18 letter?

As per the letter, the Ministry of Electronics and Information Technology has informed WhatsApp of its many violations of the Indian Laws, Rules and Regulations. 
Thereby, it has given WhatsApp just two options -- 1) To completely withdraw the highly contested privacy policy 2) To present a "satisfactory response".

The Information Technology ministry had underlined concerns over the company's accept-the-terms-or-leave-the-platform stance for Indian users that did not apply to its European consumers. In January 2021, the ministry had written a letter to WhatApp CEO Will Cathcart asking him to roll back the newly introduced privacy and policy update.

The ministry highlighted that the condition of 'accept-the-terms-or-leave-the-platform' is for users in India and not applicable for European users. It noted that it is not just problematic but also irresponsible for WhatsApp to leverage its position in the country to impose unfair terms and conditions on Indian users.

WhatsApp's controversial privacy policy

All Indian users of WhatsApp have at some point received the notification for the updated privacy policy. If we delve into it, we will see how and why it is so controversial. 

As per the policy, Facebook (WhatsApp's parent company) and all its related third parties can access the users' metadata even if they are not active/using all the applications. 

This updated policy was made mandatory for all users of WhatsApp. Well, India's Data Protection Bill is still waiting to be ratified for it to become a law. Only then can the judiciary be able to hold all those who violate our privacy accountable.

The legal tussle between WhatsApp and the Indian government

After discovering that the messaging platform had violated the provisions of India's Competition Act, 2002, on misuse of supremacy in the guise of policy update, the Competition Commission of India ordered an investigation on March 24.

The Delhi High Court sought a response from the Government of India while hearing a petition challenging WhatsApp's new privacy policy that was implemented on May 15. A bench comprising Chief Justice D N Patel and Justice Jyoti Singh issued notices to the centre, WhatsApp and parent company Facebook, for responses as it heard a petition which challenges the new policy on the grounds that it violates users' right to privacy under the Constitution of India.

India's IT ministry had also filed a counter-affidavit in the Delhi High Court in March, requesting that WhatsApp refrain from implementing its contentious privacy policy update. The government has clearly told the High Court that it considers the policy as a gross violation of the IT laws and rules and has sought directions from WhatsApp and Facebook to confirm the same.

So, what lies ahead for WhatsApp?

As mentioned above, because of strong GDPR laws, the European users of WhatsApp have been given the option to opt-out of the privacy policy. Germany soon followed suit and, in fact, banned the update. Germany is also pushing for the same at the European level because they consider these updates to be a huge intrusion of privacy.

WhatsApp cannot afford to lose a market of more than 450 million users. But given that Facebook has a long-term plan of integration of all its messaging services, updates of this nature may be deemed necessary, which means that this may be a stop-gap solution while it tries to find a new way to implement its strategy.

Ever since Facebook took over WhatsApp, it has made its long-term plans of integrating both very clear. So, such policies do fall in line with their goals.

However, given the numerous run-ins with the government, it is only for time to tell whether they would risk a 450 million user-based market.  Well, WhatsApp's rivals Signal and Telegram have already seen a 1200% growth.

Can India Ban WhatsApp?

WhatsApp is surely in troubled waters with the government. India has set a precedent in banning apps that it considered a threat to privacy and security. However, with WhatsApp, there is a possibility that it may strain the India-US relationship. 

However, given the standpoint that the government is making, they may soon ban the update. Given that the Data Protection Bill is still in the draft stage, there is only as much power in the hands of the government.