WhatsApp's vow not to suspend users fails to appease German and Indian critics

Facebook will continue to face an order not to process data from its unit WhatsApp in Germany and a lawsuit in India over the app’s new privacy policy, despite vowing today that users who refuse to accept the policy won’t be cut off from its service.

The German state of Hamburg's data protection authority issued an emergency order under the EU's General Data Protection Regulation on May 11 banning Facebook’s European subsidiary from “processing personal data from WhatsApp for its own purposes”.

The order was prompted by WhatsApp’s announcement in January that it was updating its privacy policy and terms of use. The policy change requires users to accept new terms of service to allow for the use of Facebook’s secure hosting infrastructure to process WhatsApp users’ chats with businesses.

Neither Facebook nor WhatsApp will be able to view users’ messages, but that hasn’t stopped large numbers of users for ditching the messaging service in favor of privacy-focused rival Signal.

Users initially had until Feb. 8 to accept the changes, but WhatsApp extended the deadline to May 15 as the backlash gathered steam. Today it made another concession, rowing back from an earlier statement that users withholding their consent would encounter “limited functionality” on the app.

“Given recent discussion with various authorities and privacy experts, we want to make clear that we currently have no plans to limit the functionality of how WhatsApp works for those who have not yet accepted the update,” a WhatsApp spokesman said.

"Instead, we will continue to remind users from time to time about the update as well as when people choose to use relevant optional features, like communicating with a business that is receiving support from Facebook. We hope this approach reinforces the choice that all users have whether or not they want to interact with a business,” the spokesman said.

This approach won’t placate the Hamburg authority, however. A spokesperson for the authority said that WhatsApp has maintained its threat of a loss of functionality.

The authority’s order is based on the “fact that the [user’s] consent, which is given under pressure and in an uninformed manner, should not have any negative consequences for the users," a spokesman said in an email.

Moreover, WhatsApp's privacy policy update claims business interests as the legal basis for exchanging data with Facebook, the spokesman said, and this basis is “untenable” with regard to underage users.

Lawsuit in India

In India, users have sued WhatsApp over the privacy policy and will continue the legal challenge despite the company’s recent announcements.

"It's merely a face-saver because WhatsApp will continue to send reminders to users to accept its 2021 privacy policy," said Chaitanya Rohilla, who was the first to file a petition at the Delhi High Court to challenge the new policy. Complainants will persist with their challenges until WhatsApp gives up the policy, he added.

Last week, the Indian government imposed a seven-day ultimatum for WhatsApp to come up with a "satisfactory" response to concerns over its new privacy policy or be ready to face legal consequences. That ultimatum expired today.

A spokesperson for WhatsApp said it would maintain its current approach at least until the proposed Personal Data Protection Bill becomes law and enters into force. The bill is currently being discussed in Parliament.

In a second letter to WhatsApp, the Indian government said the new policy implied that "information shared with any Facebook company could be used for an expansive variety of purposes, which may not be reasonably expected by users of WhatsApp."

The WhatsApp spokesperson told MLex that the company "responded to the government of India’s letter and assured them that the privacy of users remains our highest priority."

The recent update does not change the privacy of people’s personal messages and its purpose is to provide additional information about how people can interact with businesses if they choose to do so, the spokesperson said.