Facebook, WhatsApp to be regulated, DoT tells Supreme Court

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

The department of telecom's main argument was that OTTs use the network of telecom service providers to reach customers, offer App-based products as well as compete by offering messaging and telephone facilities, yet are not subjected to any regulatory mechanism.

This assertion came in response to WhatsApp's affidavit in the SC taking a stand that 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".

With the privacy issue being strongly argued by the petitioner and the Centre converging on it, the bench referred the issue to a five-judge bench, despite opposition from OTT service providers. It fixed April 18 for hearing before the five-judge bench for fixing dates for final disposal of the petitions even as a request was made that it should not be heard during the summer vacation.

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.