The Ministry of Electronics and Information Technology (MeitY) reiterated that WhatsApp must fully withdraw and not merely defer its controversial new privacy policy, or face action.

In a letter to the Facebook-owned messaging service on Tuesday, the Ministry demanded a response by May 25, 2021. Sources privy to the letter’s drafting told BusinessLine that in the absence of a satisfactory response, necessary steps in consonance with law will be taken. MeitY contended WhatsApp’s new privacy policy was in violation of several provisions of Indian laws. “In fulfilment of its sovereign responsibility to protect the rights and interests of Indian citizens, the government of India will consider various options available to it under laws in India,” the letter added.

Also read: WhatsApp new privacy policy violates Indian IT laws, Centre tells Delhi HC

In India, personal data is protected under two provisions – Section 43A and Section 72A of the IT Act -- the first for civil remedies and second for criminal prosecution, according to N S Nappinai, a Supreme Court lawyer and founder, Cyber Saathi. “The government has taken a definitive stand before court that WhatsApp’s policy change is contrary to Indian laws and followed it through with a letter. It can act against WhatsApp under those sections or treat it as an intermediary. If it’s the latter then WhatsApp runs the risk of jeopardising it’s intermediary exemptions,” she said.

WhatsApp had earlier claimed that it had deferred its privacy policy beyond May 15. However, the Ministry has said a deferral does not absolve WhatsApp from respecting the values of informational privacy, data security and user choice for Indian users, sources added.

Indian users discriminated

According to the terms of WhatsApp’s new privacy policy, user communication--chats, emails, calls--with business accounts could be accessed by the company and the information used for its own marketing purposes including advertising on Facebook.

Also read: WhatsApp competitors witness nearly 1,200% growth ahead of privacy policy deadline: Report

Sources at WhatsApp claimed the new policy had indeed been enforced from May 15, but the company has not deleted or stopped any user accounts yet for not consenting to the amended privacy policy.

Taking up the issue of discriminatory treatment of Indian users vis-à-vis European, the Ministry wrote, “Many Indian citizens depend on WhatsApp. It is not just problematic, but also irresponsible to leverage this position to impose unfair terms and conditions, particularly those that discriminate against Indian users.”

This is the second such communication sent by the Indian government telling WhatsApp to withdraw its privacy policy. MeitY in January had written to WhatsApp CEO Will Cathcart too on the issue.

“The option apparently given to users in other jurisdictions to opt out of the revised policy will also need to be explained. A convincing response to implement the revised policy in line with other jurisdictions could augur well to help resolve the matter,” Raj Ramachandran, Partner, J Sagar Associates, said.

 

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