The Country’s Highest Judicial Body Has Raised Concerns About Data Sharing With Cross Border Entities
September 8, 2017 13 min read
The Supreme Court of India has reportedly issued notices to Google and Twitter, in reference to the public interest litigation petition filed against the Internet behemoths over data privacy concerns by Pallav Mongia, an Advocate-on-Record at the Supreme Court. The petition, according to sources, has raised concerns about the lack of control over data sharing with cross-border corporate entities, which could potentially be a violation of the Indian citizens’ right to privacy. Data privacy is increasingly becoming an area of concern in the country, with giants like Facebook, WhatsApp, and Monster India also being inspected for allegedly sharing user data with third-party entities.
The notice has been issued by a constitution bench of the Supreme Court formed by Chief Justice Dipak Misra and Justices AK Sikri, Amitava Roy, AM Khanwilkar, and M Shantanagoudar. As part of the notice, the country’s highest judicial body, Supreme Court, has asked Google and Twitter to share their legal views on the matter.
Commenting on the development, advocate and CriTaxCorp founder Kanishk Agarwal told Inc42,“In the wake of recent judgement by Hon’ble Supreme Court of India holding “Right to Privacy” as one of the Fundamental Rights, any entity is required to take a user’s informed consent prior to sharing or selling any personal information of that user, as he/she may not be aware, at the time of providing such personal information, that such information can be sold or be misused.”
The petitioner is being represented by senior advocate Mahesh Jethmalani, advocates Ravi Sharma, Abhinav Goyal, Pankaj Kumar Singh, and Gunjan Mangla. In his petition to the Supreme Court, Mongia has also challenged the constitutional validity of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (Privacy Rules) as well as the clarification dated 24 August 2011 issued by the Ministry of Communications and Information Technology.
The petition read, “A bare reading of the clarification clearly shows that the privacy rules do not apply to body corporates outside India like Facebook, Twitter, and Google. The situation is alarming because the Indian arms of these body corporates have stated that they have no control over the content/data/information generated from India and pertaining to Indian users. The content, the website and the data/information generated on facebook.com, twitter.com and Google.com is controlled by Facebook Inc, Twitter Inc and Google Inc which are all body corporates outside India and are exempt from Privacy Rules 2011.”
Facebook Owned Whatsapp Also In Deep Trouble
In a related development, the five-member bench of the Supreme Court of India has reportedly ordered two other Internet giants, Facebook and Whatsapp, to file sworn declarations as to whether they have partaken in any kind of data sharing activities with third-party entities. This comes after two students approached the court over the changes made in WhatsApp’s privacy policy following its acquisition by Facebook.
The petitioners have alleged that WhatsApp shared all its user data with Facebook post the merger, thus violating their right to privacy.
When asked if it is the same as sharing data with third-party companies, Agarwal stated, “If users information, which was shared by users under privacy policy agreed with Whatsapp, was shared with Facebook post acquisition, but without obtaining approval of users with updated privacy policy stating that now data will be shared with Facebook, then such sharing of information is similar to sharing of information with any third-party as any modifications to privacy policy cannot have retrospective effect.”