In early 2021, WhatsApp announced that it would be unveiling a new privacy policy and terms of use for its users in India. Initially, WhatsApp had asked its users to comply with the new data privacy policy by February 8, 2021. However, following an intense public backlash against the new policy, WhatsApp delayed its implementation till May 15, 2021. Further, WhatsApp has stated that it will not compel its users to adopt the new privacy norms until the Data Protection Bill comes into effect.
Why has there been unrest amongst the public against WhatsApp’s new privacy rules? The foremost reason is the belief that the new norms breach the privacy rights of Indian citizens. Moreover, the government has noted that WhatsApp is discriminating against Indian users by asking them to comply with the new norms while this is not compulsory in European nations. The government also believes that the new privacy norms are in violation of the Information Technology Rules, 2011.
A look at what the new privacy policy entails, the government’s view on the subject, the implications for users and WhatsApp’s competitors, and the way forward…
What are the new norms?
While WhatsApp has always maintained that its platform is end-to-end encrypted and that it does not have access to users’ private chats or locations, the new norms will enable WhatsApp to share some of the business conversations hosted on its platform with its parent company, Facebook.
As per industry sources, the new terms will allow Facebook and WhatsApp to share payment and transaction data, enabling them to improve their advertisement targeting, as the social media juggernaut broadens its e-commerce offerings and looks to merge its messaging platforms. WhatsApp has said that personal conversations of individuals will not be shared; instead, what will be shared is the metadata. This metadata will include mobile device information such as the OS, phone model, screen resolution, IP addresses, language and rough location.
Government vs WhatsApp
Ever since WhatsApp announced its new privacy rules, the Indian government and civil society organisations have been urging the company to roll back these new norms. Early on, in January 2021, the central government had moved the Delhi High Court, stating that WhatsApp was treating Indian users differently from their European counterparts with regard to giving them a choice to opt out of the new privacy policy. During the hearing, the government’s legal representative informed the court that by not giving Indian users the option to opt-out of sharing their data with other companies under Facebook, WhatsApp, prima facie, appears to be treating users with an “all or nothing approach”.
According to the government, WhatsApp’s new privacy policy violates India’s Information Technology Rules, 2011 on five counts. The Ministry of Electronics and Information Technology, in an affidavit, said that WhatsApp’s new policy fails to: specify the types of personal data being collected, notify users on the collection of sensitive personal information, provide an option to review or amend the information, provide an option to withdraw consent retrospectively, and guarantee further non-disclosure by third parties.
In May 2021, the government directed WhatsApp to withdraw its new privacy policy and gave the messaging platform seven days’ time to respond to its notice. In its response to the government, WhatsApp said that it will not restrict its functionality for Indian users who do not accept its privacy policy till such time as the country’s proposed personal data protection law comes into effect. However, the company said that it would continue to send reminders to users to accept the new policy.
A month after this, the centre sent a fresh affidavit to the Delhi High Court, stating that WhatsApp was indulging in anti-user practices by obtaining “trick consent” from users for its updated privacy policy. To this end, it urged the high court to issue an interim directive to WhatsApp to desist from any action of sending “push notifications” to users related to the updated 2021 privacy policy. It also sought a directive to ask WhatsApp to place on record the number of times such notifications were being pushed daily, and their conversion rate.
Amidst all this turmoil, the Competition Commission of India (CCI) ordered a probe into the privacy policy update. The CCI said that WhatsApp had breached antitrust laws in the guise of its policy update. It further stated that it was looking into the competition aspect and not the violation of individuals’ privacy. According to the CCI, whether or not the data collection by WhatsApp and the act of sharing it with Facebook amount to an anti-competitive practice or abuse of its dominant position can be determined only after the investigation. The court proceedings are still ongoing.
The impact
Implications for users
The most obvious impact for users is likely to be the targeted ads across Facebook-owned platforms. The company will be able to show its users ads based on their browsing and search history across Instagram, Facebook and WhatsApp. Additionally, if a user uses WhatsApp to converse with a business account such as MakeMyTrip, Croma or BookMyShow, Facebook will be able to share more data about the users with these business accounts so that partners can offer more personalised services.
In the likelihood of a user not accepting the new terms and conditions, WhatsApp will not delete the user’s account or reduce the features and functionality of the app, as was earlier anticipated. WhatsApp has said that the status quo will be maintained till the data protection law comes into effect in India. However, the company is expected to continue sending reminders to its users.
Implications for competitors
Not surprisingly, the whole WhatsApp fiasco has turned out to be a boon for its competitors. According to SensorTower, Telegram and Signal, which are seen as WhatsApp’s biggest rivals, witnessed a nearly 1,200 per cent growth following the implementation of WhatsApp’s privacy policy on May 15, 2021. The numbers suggest that Telegram’s downloads on Android and iOS grew 98 per cent year on year to more than 161 million, while Signal saw its first-time downloads surge by 1,192 per cent year on year to 64.6 million between January and April 2021. During the same period, WhatsApp installs stood at 172.3 million. Clearly, while WhatsApp installs have declined, the company is still ahead of its rivals in terms of pure numbers.
Conclusion
Despite the discontent among users regarding WhatsApp’s privacy policy, the instant messaging app continues to be the market leader. It is, in fact, this dominant position that WhatsApp is perhaps exploiting to get its way as far as the implementation of the new privacy norms are concerned, say various industry experts. What seems to have made things easier for WhatsApp in India is the non-existence of data protection regulation. While India has been persistently pushing back against the new privacy policy, German regulators have since banned the implementation of this policy and the European Union is reportedly considering doing the same.
As such, analysts have highlighted that a data protection law is the need of the hour in India and would go a long way in ensuring that uniform practices are followed across the industry and by all players.
Going forward, it will be interesting to watch how the whole WhatsApp privacy scenario unfolds amidst the still fluid regulatory environment in the country.
By Diksha Sharma
