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WhatsApp updates its terms and privacy policy with effect from 15 May 2021

If you use WhatsApp and you do not live in the European region, you may probably have received a notice via a pop-up alert entitled “WhatsApp’s terms and privacy policy update”. You have two options, either you “Accept” or you click on “Not Now”.

WhatsApp had tried to roll out this updated terms and policy back in February 2021 but this triggered a rage of controversy. There was a rise in alternative instant messaging like Signal and Telegram and a general awareness about data privacy emerged worldwide. WhatsApp decided to postpone the coming into operation to 15 May 2021 to enable WhatsApp to clear up confusion and misinformation about the new terms. It rolled out a publicity campaign explaining that there were no changes to data sharing with its parent company, Facebook anywhere in the world. WhatsApp reiterated that the new terms do not impact on the privacy of personal messages.

The changes post 15 May are two-fold. Firstly, they relate to messaging between businesses and their customers. More people communicate with businesses, large and small, on WhatsApp and such communication is purely optional. Such businesses would be able to use Facebook as a technology provider to manage their responses to queries received on their business WhatsApp accounts. Facebook secure hosting services in fact allow businesses to manage WhatsApp chats with customers. Such conversations are clearly labelled to inform the customer that the business is using Facebook hosting services. At all times, the user remains in control of his WhatsApp and can decide whether it wants to share his number with a business or not. Any number shared with a business can be blocked (and unblocked) at any time.

The other changes relate to the Privacy Policy of WhatsApp which aims to bring more clarity on how WhatsApp collects, shares and uses data. WhatsApp has a history of putting privacy first. In 2016, it introduced end-to-end encryption across chats which reinforced its privacy DNA. Even if data was being shared with Facebook for better ad targeting, users could opt out from same at any time, without any strings attached.

The data which WhatsApp collects can be subcategorized into information which a user provides to WhatsApp like account information, messages, status information, transactions and payments data, and automatically collected data like usage and log information, device and connection information, location information and cookies.

WhatsApp advocates that since its inception, it has built its services with strong privacy and security principles in mind. WhatsApp has reaffirmed that its commitment to privacy of its users is not changing. WhatsApp maintains that “Your Privacy is Our Priority”. Private messages remain end-to-end encrypted and no one – not even WhatsApp (or Facebook), can read or listen to them. WhatsApp has reassured its users that it does not keep logs of who everyone is messaging or calling, nor does it share its users’ contacts with Facebook. Similarly, WhatsApp does not see any location which a user has shared, as same is end-to-end encrypted, as well. In fact, it offers its users a series of tools, features and resources to help them make informed decisions and keep their communication safe and secure. An added layer of security is provided by features like disappearing messages after seven days and controlling who can add you to a WhatsApp group.

The question is, what if a WhatsApp user does not accept the new terms by 15 May 2021? The simple answer is that not accepting same may entail deletion of the user’s WhatsApp account. In the pop-up alert, WhatsApp states the following “please accept these updates to continue using WhatsApp after this date”. This is a clear and unequivocal indication that if you do not accept those terms, you cannot use WhatsApp. Besides, the terms of service of WhatsApp provide that “We may modify, suspend, or terminate your access to or use of our Services anytime for any reason”. It is therefore abundantly clear that WhatsApp can unilaterally terminate a user account. However, it would seem that WhatsApp will not resort to such a drastic measure but will instead opt for a softer approach by gradually turning off features until the user accepts the new terms. The user will therefore be given a moratorium of a few weeks with limited functionalities until the user is faced with a hard deadline of whether he accepts the new terms or he discontinues using WhatsApp.
To conclude, WhatsApp has stated that “Your acceptance of the new Terms of Service does not expand WhatsApp’s ability to share user data with its parent company Facebook”. Time will tell us how these updated terms will unfold when we recently learnt that the German data protection regulator has issued an injunction that prevents Facebook (which acquired WhatsApp for $19B in 2014) from collecting and processing WhatsApp user data. As a next step, the German data protection regulator will seek an EU-wide ruling at the European Data Protection Board on the ground that the new WhatsApp terms are illegal.