MOOT COURT NO.

MEMORIAL ON BEHALF OF THE PETITIONER

NAME OF THE STUDENT: - NEHA DEVIDAS KOLAPKAR

ID NO: 9489

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 IN THE HIGH COURT OF JUDICATURE OF VIJAYNAGAR

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

IN THE MATTER OF

ARTICLE 226 OF THE CONSTITUTION OF INDIA

WP No. 1234 of 2017

AND

IN THE MATTER OF

SUDHIR GAIKWAD …………………………………………………………….… Petitioner

V/S.

STATE OF MANNUR AND OTHERS…..……………………………...………. Respondent

COUNCIL ON BEHALF OF PETITIONER MOST RESPECTFULLY SUBMITS BEFORE THE

HON’BLE CHIEF JUSTICE AND OTHER JUDGES OF HIGH COURT

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TABLE OF CONTENTS

1. INDEX OF AUTHORITIES
2. STATEMENT OF JURISDICTION
3. STATEMENT OF FACTS
4. STATEMENT OF ISSUES
5. STATEMENT OF PLEADINGS
6. REFRENCE CASES
7. PRAYER CLAUSE

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 ABBREVATIONS

1. AIR : All India Reporter

2. SC : Supreme Court

3. Cas : Cases

4. SCC : Supreme Court Cases

5. HC : High Court

6. & : And

7. Ors : Others

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 INDEX OF AUTHORITIES

Books Referred:

The constitution of India

The information technology act,2000

Internet sources:
1. www.manupatra.com
2. www.indiankanoon.com

3. WhatsApp old Privacy Policy

4. WhatsApp new Privacy Policy

Cases Referred:

K.S. Puttaswamy and Anr v. Union of India & Ors. (2015) 8 SCC 735

Sharda v. Dharmpal 22 the Supreme Court

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STATEMENT OF JURISDICTION

This is a Public Interest Litigation filed in High Court under Article 226 of The Constitution of
India.

226. Power of High Courts to issue certain writs:

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories

Article 226- Public Interest Litigation before the High Court:

• Both the High court and supreme court have the power to entertain a PUBLIC INTEREST
LITIGATION

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• Since there are no statutes or rules, there cannot be a specific difference, as to which court
will have jurisdiction on the PUBLIC INTEREST LITIGATION

• It will purely and solely depend on the "Nature of the case", if the question involves only
a small group of people being effected by action of State authority, the PUBLIC
INTEREST LITIGATION can be filed in high court.

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 STATEMENT OF FACTS

I.WHATSAPP

Whatsapp messenger is a freeware and cross-platform instant messaging service for smartphones.
It uses the Internet to make voice calls, one to one video calls; send send text messages, images,
GIF Videos, documents, user location, audio files, phone contacts and voice notes to other users
using standard cellular mobile numbers. All data are end-to-end encrypted. It also incorporates a
feature called Status, which allows users to upload photos and videos to a 24-hours-lifetime feed
that, by default, are visible to all contacts, similar to Snapchat, Facebook and Instagram Stories.

II. FACEBOOK

Facebook may be accesses by a large range of desktops, laptops, tablet computers and smartphones
over the internet and mobile networks. After registering to use the site, users can create a user
profile indicating their name, occupation, schools attended and so on. Users can add other users as
friends, exchange messages, post status updates and digital photos, share digital videos and links,
use various, software application (Apps) and receive notifications when others update their profiles
or makes posts.

III. ACQUISITIONS OF WHATSAPP BY FACEBOOK

In 2014 Whatsapp the social messaging app was acquired by Facebook. In 2016 whatsapp
announced it was changing its privacy policy to allow sharing of its data with its parent company
facebook to improve the quality of its service provided by whatsapp and facebook with better data
for targeted advertising.

Whatsapp and facebook realized that there was lot of discussion online about changes in the
privacy policy and accordingly he started to analyze the policy changed. And he found that –“the
policy explicitly mentioned a heading called “Data we do not collect “and said we do not collect
content of messages. The new policy however as a heading called data we collect and mentions
content. It also says they retain popular photos for a longer time but what is popular and what is

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longer time is not defined anywhere. The company can use data as they see fit and it can share data
with facebook”

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STATEMENT OF ISSUES

1. Whether the Right to Privacy is getting infringed.

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 STATEMENT OF PLEADINGS:

1. It is pleaded in the petition that "WhatsApp" was acquired in the year 2014 by "Facebook Inc.",
and that all services relating to whatsapp are controlled by facebook

2. It is also pleaded in the petition that when "WhatsApp" was launched in the year 2010, it had
declared a privacy policy of total/complete safety against any kind of sharing of data/details of
users and in view of the complete security and protection of privacy provided, the users/subscribers
got linked with "WhatsApp" and started putting their personal details/data on the said Application.
It is alleged that after "WhatsApp" was acquired by facebook, a drastic change has been proposed
to be made in the privacy policy of "WhatsApp" and the users were put on notice in August, 2016
that the "WhatsApp" account information of users would be shared with "Facebook", a popular
free social-networking website, and all its group companies to improve "Facebook" ads and
products experiences. The users were asked to agree to the terms and privacy policy by 25.09.2016
to continue using "WhatsApp".

3. The said action of the respondent Nos.2 to 4 is assailed in this writ petition contending inter alia
that the proposed change in the privacy policy of "WhatsApp" would result in altering/changing
the most valuable, basic and essential feature of "WhatsApp". It is also contended that the
unilateral action of the whatsapp and facebook in taking away the protection to privacy of details
and data of users of "WhatsApp" and sharing the same with "Facebook" and all its group
companies for the purpose of commercial advertising and marketing amounts to infringing the
fundamental rights of the users guaranteed under Article 21 of the Constitution

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WHATSAPP OLD PRIVACY POLICY

According to the Terms and Privacy Policy, WhatApp will share the following pieces of
information with Facebook and its “family” of companies (i.e. Instagram, Oculus):

• Phone Number

• Last time WhatsApp was used

Probing further, managed to get Facebook to reveal a few other key points of WhatsApp user data
that will be shared:

• Type of operating system

• Screen resolution

• Mobile carrier

• A device identifier

• How often people open the app

• Mobile country code

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WHATSAPP NEW PRIVACY POLICY AND USER DATA

WhatsApp cares about your privacy.

WhatsApp’s Privacy Policy describes our information (including message) practices, including
the types of information we receive and collect from you and how we use and share this
information. You agree to our data practices, including the collection, use, processing, and sharing
of your information as described in our Privacy Policy, as well as the transfer and processing of
your information to the United States and other countries globally where we have or use facilities,
service providers, or partners, regardless of where you use our Services. You acknowledge that the
laws, regulations, and standards of the country in which your information is stored or processed
may be different from those of your own country.

Acceptable use of services

You must use Services according to Terms and posted policies. If we disable your account for a
violation of our Terms, you will not create another account without our permission.

Legal and Acceptable Use.

You must access and use our Services only for legal, authorized, and acceptable purposes. You
will not use (or assist others in using) our Services in ways that: (a) violate, misappropriate, or
infringe the rights of WhatsApp, our users, or others, including privacy, publicity, intellectual
property, or other proprietary rights; (b) are illegal, obscene, defamatory, threatening, intimidating,
harassing, hateful, racially, or ethnically offensive, or instigate or encourage conduct that would
be illegal, or otherwise inappropriate, including promoting violent crimes; (c) involve publishing
falsehoods, misrepresentations, or misleading statements; (d) impersonate someone; (e) involve
sending illegal or impermissible communications such as bulk messaging, auto-messaging, auto-
dialing, and the like; or (f) involve any non-personal use of our Services unless otherwise
authorized by us.

Harm to WhatsApp or Users.

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You must not (or assist others to) access, use, copy, adapt, modify, prepare derivative works based
upon, distribute, license, sublicense, transfer, display, perform, or otherwise exploit our Services
in impermissible or unauthorized manners, or in ways that burden, impair, or harm us, our Services,
systems, our users, or others, including that you must not directly or through automated means: (a)
reverse engineer, alter, modify, create derivative works from, decompile, or extract code from our
Services; (b) send, store, or transmit viruses or other harmful computer code through or onto our
Services; (c) gain or attempt to gain unauthorized access to our Services or systems; (d) interfere
with or disrupt the integrity or performance of our Services; (e) create accounts for our Services
through unauthorized or automated means; (f) collect the information of or about our users in any
impermissible or unauthorized manner; (g) sell, resell, rent, or charge for our Services; or (h)
distribute or make our Services available over a network where they could be used by multiple
devices at the same time.

Keeping Your Account Secure. You are responsible for keeping your device and your WhatsApp
account safe and secure, and you must notify us promptly of any unauthorized use or security
breach of your account or our Service.

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 ARGUMENTS ADVANCED

1. It is claimed by the petitioners that the present petition is filed in public interest on behalf of
themselves and millions of users who are citizens of India using "WhatsApp" messaging service.
It is sought to be contended that by the impugned action, a facade is being created as if a consent
is being taken from the users before the change of the privacy policy which is the basic feature of
the service, is carried out and that the manner in which the so called consent is sought to be taken
is highly deceptive in as much as almost the entire community of users of "WhatsApp"

2. In our country people are not equipped to even read, and understand the consequences of the
terms and conditions on the basis of which the consent of the users is sought to be obtained. It is
contended that the proposed changes in the privacy policy would result in irreversible damage to
the fundamental rights of all the users of "WhatsApp" who were guaranteed protection of privacy
of their information to protect the personal and public rights of millions of citizens of this country
who are using the service of whatsapp.

3. Facebook in 2014 had decided to acquired whatsapp. Finally in February 2014 facebook and
whatsapp agreed and facebook acquired the whatsapp. Thereafter all the policy of whatsapp has
been changed as the new policy says that all the data of the users will be shared by whatsapp
facebook and the group companies thereby infringing the basic rights of the users and infringing
the privacy of users.

Below is a brief set of facts relevant to this Petition:

RETENTION OF CONTENTS OF MESSAGES

(i) WhatsApp retain messages in the ordinary course of providing its services to its users.

(ii) Once users' messages (including chats, photos, videos, voice messages, files, and share location
information) are delivered, they are stored on WhatsApp's server.

(iii) If a message cannot be delivered immediately (for example, if a user is offline), WhatsApp
keep it on its servers for up to 30 days as it tries to deliver it.

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(iv)To improve performance and deliver media messages more efficiently, such as when many
people are sharing a popular photo or video, WhatsApp retain that content on its servers for a
longer period of time.

(v) If a message cannot be delivered immediately (for example, if you are offline), we may keep
it on our servers for up to 30 days as we try to deliver it. If a message is still undelivered after 30
days, we delete it. To improve performance and deliver media messages more efficiently, such as
when many people are sharing a popular photo or video, whatsapp retain that content on their
servers for a longer period of time.

(vi) For Users who completely delete WhatsApp, the information of such Users should be
deleted completely from WhatsApp servers.

(vii) For Users who opt to remain in WhatsApp and are willing to share data, past information
should not be shareable.

(viii)WhatsApp should not be allowed to use the information for any purpose without the User's
consent.

(ix) In the event that WhatsApp is acquired by or merged with a third party entity, whatsapp reserve
the right to transfer or assign the information they have collected from the users as part of such
merger, acquisition, sale, or other change of control. In the (hopefully) unlikely event of whatsapp
bankruptcy, insolvency, reorganization, receivership, or assignment for the benefit of creditors, or
the application of laws or equitable principles affecting creditors' rights generally, whatsapp is not
be able to control how the personal information is treated, transferred, or used.

4. Sharing of data with facebook and its group companies and keeping the data with themselves is
infringing the right of users, as nowadays the whatsapp app is being used for many commercial
and confidential purposes also the politician and the government of our country I using it for their
confidential purpose and as per the new privacy policy the basic right provided by the whatsapp is
getting hampered and therefore this is resulting into misuse of information by the facebook

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REFERENCE CASES :

K.S. Puttaswamy and Anr v. Union of India & Ors. (2015) 8 SCC 735

In 2015, the Supreme Court contended with the argument that Article 21 yielded no constitutional
right to privacy. In Justce K.S. Putaswamy v. Union of India13 a batch of petitions challenging the
establishment of the Unique Identification Authority of India and the Aadhaar scheme came up
before a two Judge Bench of the Court. The Petitioners argued, amongst other things, that the
collection of biometric data of citzens was a violaton of the right to privacy protected under Article
21 and other rights in the Constitution.

Sharda v. Dharmpal 22 the Supreme Court

In this case said that though the right to personal liberty has been read into Article 21, it cannot be
treated as an absolute right. To enable the court to arrive at a just conclusion a person could be
subjected to test even though it would invade his right to privacy. It concluded that one has to
maintain a balance between the rights of a citizen and the right to privacy. It ultimately requires a
healthy and congenial interrelationship between the social good and the individual liberty. Privacy
and data protection Privacy and data protection require that information about individuals should
not be automatically made available to other individuals and organisations. Each person must be
able to exercise a substantial degree of control over that data and its use. Data protection is legal
safeguard to prevent misuse of information about individual person on a medium including
computers. It is adoption of administrative, technical, or physical deterrents to safeguard personal
data. Privacy is closely connected to data protection. An individual data like his name, address,
telephone numbers, profession, family, choices, etc. are often available at various places like
schools, colleges, banks, directories, surveys and on various websites. Passing of such information
to interested parties can lead to intrusion in privacy like incessant marketing calls. The main
principles on privacy and data protection enumerated under the Information Technology Act, 2000
are defining data, civil and criminal liability in case of breach of data protection and violation of

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confidentiality and privacy. Concept of data protection The Information Technology Act which
came into force in the year 2000 and is the only Act to date which covers the key issues of data
protection, albeit not every matter. In fact, the Information Technology Act, 2000 enacted by the
Indian Parliament is the first legislation, which contains provisions on data protection.

According to Section 2(1)(o) of the Act, 2. (1)(o) Data means a representation of information,
knowledge, facts, concepts or instructions which are being prepared or have been prepared in a
formalized manner, and is intended to be processed, is being processed or has been processed in a
computer system or computer network, and may be in any form (including computer printouts
magnetic or optical storage media, punched cards, punched tapes) or stored internally in the
memory of the computer;

The IT Act does not provide for any definition of personal data and the definition of data would
be more relevant in the field of cyber crime. Further, the IT Act defines certain key terms with
respect to data protection, like access, computer, computer network, computer resource, computer
system, computer database, data, electronic form, electronic record, information, intermediary,
secure system and security procedure. The idea behind the aforesaid section is that the person who
has secured access to any such information shall not take unfair advantage of it by disclosing it to
the third party without obtaining the consent of the party concerned. Third Party Information is
defined to mean information dealt with by an intermediary in his capacity as an intermediary•, and
it may be arguable that this limitation also applies to data and e-communication•.

PRAYER

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In the light of issues raised, arguments advanced, and authorities cited, The Petitioner most
respectfully pleads to this Hon’ble Court That-

A) Writ of Mandamus may kindly be allowed and

B) Grant just & equitable relief to the Petitioner as the Hon’ble Court deems fit.

Place : Pune

Date : Petitioner

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