Will have regulatory regime on data protection: Govt to Supreme Court

New Delhi: A "regulatory regime" for data protection is in the offing, the government on Thursday told the Supreme Court, asserting that an individual's freedom of choice needs to be protected.

"We are coming out with a regulatory regime on data protection. Freedom of choice needs to be protected and there cannot be any doubt over it," Additional Solicitor General (ASG) Tushar Mehta told a five-judge constitution bench headed by Justice Dipak Misra.

The bench, which is hearing the WhatsApp privacy policy matter, was informed that the government was also committed to protect the freedom of choice of citizens.

The bench, also comprising Justices A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar, had asked the government to clarify its stand on the issue.

The apex court also noted Mehta's submission that "the Government of India is placed or stands dedicated to see that individual's freedom of choice is not scuttled".

During the hearing, senior advocate Harish Salve, who was appearing for petitioners Karmanya Singh Sareen and Shreya Sethi, placed before the bench the questions of law which were required to be dealt with in the matter.

Referring to WhatsApp's new privacy policy, he said that someone could snoop into the messages, videos and photos which a user shares or circulates on the instant messaging platform.

Senior advocate Kapil Sibal, appearing for WhatsApp, countered the submissions saying they were protecting privacy of users as they have an end-to-end encryption technology which cannot be looked into by a third person.

Senior counsel K K Venugopal, representing Facebook, told the bench that they have filed application in which they have raised preliminiary issues on the maintainability of the plea.

He also argued that when the government has already said it would come out with a regulatory regime, "what is the purpose of deciding this now".

The bench, which fixed the matter for hearing during the summer vacation on May 15, said the maintainability issue would be dealt with at the time of hearing arguments.

However, Salve questioned the end-to-end encryption method and said "I am objecting to someone looking into my messages".

At the fag end of the hearing, he said, "privacy has multiple dimensions. Here, I am saying that I am entrusting something to you. Confidentiality has to be protected."

During the hearing, the bench allowed the application of a body, Internet Freedom Foundation, which has sought to be impleaded as a party in the matter.

The counsel representing the foundation said "the State has the duty to regulate this. All the other countries have data protection Act".

The bench, however, observed that if somebody would say that his or her freedom has been curtailed, it would be the duty of the court to protect it.

During the hearing, Salve read out the questions of law submitted by him, which included "whether Article 21 read with Articles 14, 19 and 25 of the Constitution, confers upon all persons the right to privacy in respect of communications which are private in nature, irrespective of the medium of communication".

"Whether Article 19, read with Article 14, 19 and 25 confer upon all persons the right to privacy in respect of all personal communications as well as personal data - financial and otherwise," he also asked.

Salve said if the answer to these two questions were in the affirmative, the court would have to deliberate on whether any unauthorised access to such communications or personal matters or particulars by any agency without the legal authority is violative of Article 21 read with Article 14, 19 and 25.

While Article 14 relates to equality before the law, Article 19 pertains to freedom of speech and expression. Similarly, Article 21 and 25 relates to right to life and freedom of conscience and free profession, practice and propagation of religion respectively.

The other questions given by Salve are "Whether the right to privacy, in Article 21 read with Articles 14, 19 and 25 extends not merely to the state and its agencies, but also to private agencies who in the course of their business, have access to such information made available to them on condition of secrecy and confidentiality."

"Whether service providers, particularly monopolies and quasi monopolies, who operate services incidental and ancillary to telecommunications and in the course of which they carry messages of private persons, or have access to particulars of private persons, are under a constitutional duty to protect and preserve the privacy of private persons".

He also said if the answer to these two questions were in the affirmative, the court has to deal with the issue "whether the state is under an obligation, to protect the constitutional rights of persons, to frame appropriate rules and regulations to ensure that those agencies who operate telecommunications and allied services function in a manner that sufficiently protects and safeguards the constitutional rights to privacy of private persons".

The apex court is hearing the appeal assailing the high court verdict on the ground that no relief was granted for data shared by users after September 25, 2016 which amounted to infringement of fundamental rights under Article 19 and 21.

The apex court had on January 16 sought the responses from the Centre and Telecom Regulatory Authority of India on the plea that privacy of over 157 million Indians has been infringed by social networking sites - WhatsApp and Facebook - for alleged commercial use of personal communication.