Govt accuses WhatsApp of obtaining ‘trick consent’ from users in privacy policy case

The information technology ministry has accused WhatsApp of obtaining “trick consent” of its users by “bombarding” them with notifications to accept its new privacy policy, according to an affidavit filed with the Delhi High Court on Thursday.

In the affidavit, the ministry said that “...[WhatsApp has] unleashed its digital prowess to the unsuspecting existing users and would like to force them to accept the updated 2021 privacy policy by flashing such notifications at regular intervals”.

The affidavit, a copy of which has been seen by Entrackr, was filed in a case challenging the validity of WhatsApp’s privacy policy, saying it violates India’s privacy laws as laid down in the Information Technology Act, 2000. 

The IT Ministry also said that WhatsApp’s “game plan” is to “transfer the entire existing user base committed to updated 2021 privacy policy before the Personal Data Protection (PDP) Bill becomes the law”. 

In the affidavit, the ministry urged the court to stop WhatsApp from sending push notifications to its users who are yet to accept the updated privacy policy. 

It also urged that WhatsApp place on record the frequency with which it sends such notifications along with their conversion rate, that is, how many users have accepted the policy after seeing one of WhatsApp’s notifications. 

Following the government’s affidavit, a WhatsApp spokesperson said in a statement on Thursday that the platform will not limit the functionality of how WhatsApp works “in the coming weeks” for users who are yet to accept the updated privacy policy. 

“Instead, we will continue to remind users from time to time about the update as well as when people choose to use relevant optional features, like communicating with a business that is receiving support from Facebook[...]We will maintain this approach until at least the forthcoming PDP [Personal Data Protection] law comes into effect,” the WhatsApp spokesperson added. 

The Personal Data Protection Bill was being deliberated upon by a Joint Parliamentary Committee which is expected to submit its report on the bill in the next session of Parliament. 

The government’s affidavit came in response to WhatsApp’s affidavit filed last month where the company said that if WhatsApp’s privacy policy was stopped, it would “disrupt an industry which provides a wide variety of important services to users on the basis of similar policies”. 

In its affidavit, a copy of which has been seen by Entrackr, WhatsApp named platforms like Koo, Aarogya Setu, Ola, Microsoft, Google, BigBasket, and Truecaller among others, and said that these platforms also collect similar types of personal information to offer their services. 

WhatsApp’s updated privacy policy has been the subject of a furore ever since it was announced in January 2021. The new policy allows WhatsApp to share data between the messaging service and other products of the Facebook group, especially for communications with businesses, and this has become a sore point for privacy activists, users and the government alike.

The backlash then saw many users in India downloading other messenger apps like Signal and Telegram in anticipation of a hard deadline set for May by WhatsApp for users to accept its new policy. In fact, WhatsApp even saw a  temporary decline in its downloads in India. 

However, on May 7, WhatsApp issued a statement saying that it will not deactivate the account of users who do not accept its updated privacy policy by May 15, which was the deadline to accept the policy, and that the app’s functionality will remain unaffected for Indian users. 

However, as Entrackr had previously pointed out, the company’s statement did not reveal the entire situation. In reality, WhatsApp said it will send “persistent reminders” to users who are yet to accept the privacy policy and will eventually limit the app’s functionality after an unspecified amount of time if users don’t accept.  

Separately, WhatsApp has also sued the Indian government over the country’s new social media rules which could potentially force the company to break its end-to-end encryption security, making personal messaging on the platform less safe for users across the world.

In response to WhatsApp’s lawsuit, information technology minister Ravi Shankar Prasad said that “none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact”. 

“The government of India is committed to ensure the right of privacy to all its citizens but at the same time it is also the responsibility of the government to maintain law and order and ensure national security,” he added.