WhatsApp, other OTT services will be regulated, DoT tells SC

The government on Wednesday informed the Supreme Court that it would soon put in place a regulatory regime for Over-The-Top (OTT) services like WhatsApp, Facebook, Skype, WeChat and Google Talk, similar to one existing for all telecom operators.

The Department of Telecom's assertion comes in response to WhatsApp's affidavit in the SC taking a stand that the petition filed by one Karmanya Singh Sareen questioning its privacy policy was not maintainable.

According to DoT, OTTs use the network of telecom service providers to reach customers to offer App-based products and compete among themselves as well as telecom service providers by offering messaging and telephone services, but are not subjected to any regulation.

In an affidavit filed in the SC WhatsApp, however, said the petition filed by Karmanya Singh Sareen questioning its privacy policy was not maintainable as "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".

Petitioner's advocate said lack of privacy in messages over WhatsApp not only violated right to privacy, but also stifled right of free speech in conversations between two individuals.

WhatsApp's lawyer said messages sent on it were end-to-end encrypted, preventing even WhatsApp from reading them.

With the petitioner strongly arguing over the privacy issue and the DoT also maintaining the view the SC bench has now referred the case to a larger bench.

the next hearing on the petition has now been fixed for 18 April, which will also decide on fixing dates for the final disposal of the petitions even as a request was made that it should not be heard during the summer vacation.

In fact, Chief Justice of India JS Khehar on Wednesday advanced the date for the Constitution Bench hearing to 18 April, saying it is a ''serious issue.''

Senior advocates Kapil Sibal and K K Venugopal, who appeared for WhatsApp and other OTT service providers, said there was no issue of privacy involved in the controversy raised by the petitioner as it is a matter of contract between the user and OTT service provider.

But, the petitioner's advocate Madhavi Divan said the lack of privacy in private messages over WhatsApp not only violated the right to privacy, which is intrinsically linked to right to life guaranteed under Article 21, but also stifled right of free speech, guaranteed under Article 19(1)(a), in conversations between two private individuals.

Sibal countered this by saying there was no privacy violation as messages sent on WhatsApp were end to end encrypted preventing even WhatsApp to read them.

The case is based on a petition by two students - 19-year-old Karmanya Singh Sareen and 22-year-old Shreya Sethi - challenging the contract entered into between the two internet giants to provide access to calls, photographs, texts, videos and documents shared by users despite the fact that privacy is prized and guaranteed by WhatsApp.

The Delhi High Court had earlier upheld the contract, confirming the legality of the policy effective from 25 September, but directed WhatsApp to ''delete completely'' from its server information / data / details of all users who choose to delete their account.

The duo then appealed the Supreme Court, which responded by directing Facebook, WhatsApp, the centre and the Telecom Regulatory Authority of India (Trai) to file responses and roped in Attorney-General Mukul Rohatgi to assist it in the case.