The Department of Telecommunications (DoT) informed the Supreme Court on Wednesday that it plans to put in place a framework to regulate Over The Top services such as Facebook, Whatsapp, Skype, Google Talk, etc., the Times of India reports.

What the case is about

The government was responding to a PIL filed in the SC questioning Whatsapp’s privacy policy. The petition filed by Karmanya Singh Sareen claimed “Over The Top (OTT) services are governed in some respect by the provisions of Information Technology Act, 2000 and are not subject to the same regulatory mechanism that is enforced on conventional voice and messaging services provided by telecom service providers”.

The petitioner’s advocate Madhavi Divan argued that the lack of privacy on WhatsApp not only violated the right to privacy, which is linked to the right to life under Article 21 of the Indian Constitution, but also stifled right of free speech protected under Article 19(1)A.

“Whatsapp projects itself as a free service and uses consumer data to sell ads on Facebook. In the case of an illiterate or semi-literate person, the person will not be able to gauge the broader implication of the terms of service. Fundamental rights cannot be barred away by gaining the consent of a user using a click. Regulations need to be put in place. Primarily because the consumers are not necessarily able to protect themselves,” Divan told Medianama.

“Over The Top services such as Whatsapp and Facebook are not covered under Indian laws. Unlike in the case of telecom or broadcasting, such services don’t fit the definition of telegraph under the Telegraph Act, 1869. So, they don’t need a license to work and aren’t regulated by laws,” she added.

Whatsapp’s privacy policy and the status of law in India

WhatsApp’s new privacy policy updated in August 2016 allows the company to share user data, including phone numbers and contact lists, with its parent company Facebook. In September 2016, the Delhi High Court had asked WhatsApp not to share this information with Facebook.

Interestingly, in the Aadhaar case, the Attorney General of India has argued in the Supreme Court that privacy is not a fundamental right.

In an earlier post, we had argued:

“We are at the mercy of privacy terms defined by WhatsApp and Facebook because India doesn’t have a privacy law. There’s an opportunity for a privacy law in India, so that global companies are forced to conform to our privacy laws, instead of forcing Indians to conform to their privacy terms.

“While we worry about privacy on WhatsApp, lets not forget that much of regular calling and SMS in India is unencrypted and is being tracked by the Indian government’s Centralised Monitoring System. It also wants to lower encryption to gain access to all WhatsApp messages and all WhatsApp and Skype calling. We need a privacy law, and we need to ensure that the government doesn’t make citizens less secure by forcing the lowering of encryption.”

The SC has referred the issue to a five-judge Constitutional bench, despite opposition from OTT service providers, who maintained that there was no breach of privacy on their platforms. The court has fixed the matter for hearing on 18 April. Meanwhile, the status of privacy laws in India is pending before a nine-judge Constitutional bench in the Supreme Court.