WhatsApp’s new privacy policy is unfair, but legal

WhatsApp has always made huge promises of safeguarding privacy, whether through the introduction of end-to-end encryption or through its promise of no compromise with privacy following its acquisition by Facebook. The sweeping changes to its privacy policy announced yesterday naturally came as a huge shock to its users. The chief changes being made are that WhatsApp will now share customer information with Facebook, in order to provide targeted ads and better friend suggestions, and with other third parties to allow businesses to communicate with users. WhatsApp has given its users a time limit of 30 days to opt-out of the new privacy policy. While the sudden announcement seems like a U-turn on every promise ever made by WhatsApp, the change is unfortunately legal.

WhatsApp can now share all information collected with anyone

Two years ago when WhatsApp was acquired by Facebook, WhatsApp put up a blogpost which assured its users that the acquisition will leave its privacy practices unchanged. WhatsApp’s previous privacy practices were extremely user friendly. Basically the only information that WhatsApp collected was its customers’ contact number, their device information, and the contact numbers on their friends list. The old Privacy Policy made express promises that no information would be shared with anyone else, there would be no third-party ads, and no information shared for commercial or marketing purposes. WhatsApp’s new Privacy Policy now gives a vast list of information which it collects:

Information on your online status such as when you were last seen online, when you updated your status message, etc.

Information from third party services that are integrated with WhatsApp, for example, if you share any article from the web using WhatsApp.

Information on who is messaging you, calling you or which groups you belong to.

Under the new Privacy Policy, there is no restriction being placed on what type of information is shared with whom.

Yet another change is while the new Privacy Policy keeps the promise of no third party banner ads, it now says that in future if WhatsApp changes its mind, it can have these ads through a change in the privacy policy.

WhatsApp’s changes to privacy maybe unfair, but is legal

While the sweeping changes made to WhatsApp’s privacy policy makes it appear that WhatsApp is deceiving its users, unfortunately, legally, WhatsApp can do this. All it needs to do is inform its customers of the change, and obtain their consent for the same. Had the changes been made without informing the customers or without offering an opt-out mechanism, then WhatsApp would have fallen afoul of privacy legislations. In fact, following Facebook’s acquisition of WhatsApp in 2014, the US Federal Trade Commission sent a letter to Facebook warning Facebook against making changes to its privacy practices without informing its customers.

Is asking customers to opt-out adequate as consent to the changes?

Obtaining adequate and legal consent of the customers is a very important part of a valid change to privacy practices. All online terms and conditions, as also WhatsApp’s old Privacy Policy, state that changes will be made from time to time to the terms, and your continued use of the app will amount to consent. Usually, users need not even be informed of the changes made. In the case of changes to privacy practices, particularly when your personal information is being transferred to third parties, like WhatsApp is here, the case is different. In such a case, the customer needs to be informed of the change, and must specifically consent to that change.

Why didn’t WhatsApp adequately inform users of the change?

The only questionable part of WhatsApp’s changes is whether it adequately informed its customers about the changes. When WhatsApp introduced end-to-end encryption, every user was informed of this change on their chat screens. Surprisingly, now when a change of this scale has been made to its privacy practices, there is no similar notice on the chat screens. The only source of information is the blogpost, and it is questionable how many WhatsApp users actually take the trouble to check WhatsAp’s blogs. The blogpost itself outlines only some of the changes being made.  It doesn’t inform customers of the extent of the changes being made. The new Privacy Policy, which WhatsApp claims has been written to make it easier for the people to understand, is actually even more confusing to understand, and leaves vast scope for misinterpretation and misuse.

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