I recently asked my teenage daughter whether she has accepted the new WhatsApp terms. Her answer: “Not sure. Probably.” In response, I asked whether she at least read the terms and conditions. “What’s the point Mom? You HAVE to accept them if you want to use the service.” So much for having a privacy lawyer as a mother.
Since the announcement of the changes to the terms, we have read lots of articles and, literally, thousands of users have expressed their views on various platforms – to such an extent that WhatsApp postponed the implementation of the new rules to a later date. Our own Information Regulator has also indicated that discussions with Facebook SA would be required to consider the changes against our own Protection of Personal Information Act requirements, which will take effect on 1 July 2021.
What are the facts?
- WhatsApp currently makes use of end-to-end-encryption, which means that only the recipient of a message can actually read the content of the message. If the message somehow gets intercepted on the way to the recipient, the interceptor will not be able to read the message. This will not change under the new terms.
- WhatsApp will not share the content of user messages with Facebook (or any other party for that matter).
- Under the current terms, WhatsApp already shares some user information (not message content) with Facebook, unless the user opted out during a short period allowed for in 2016. This means that if you did not use this opt out in 2016, the information has already been and can still be shared in terms of the current privacy policy.
- Under the new terms, users will still have some choices around privacy setting. For example, location data will only be shared if you agree to it.
- If you do not agree to the changes before the implementation date, you will not be able to continue using WhatsApp.
What are the learnings?
- WhatsApp took an approach of transparency and disclosure to inform users of the coming changes. Being transparent about the use of data is a general privacy law requirement.
- Lots of users, however, responded negatively to the announcement – almost as if they realised for the first time that their data is being used in some way or another.
- Following from this, it is probably fair to say that users have and are becoming more aware of their privacy rights.
- It can therefore be expected that users will consider privacy policies and statements more carefully in the future when deciding whether or not to sign up for a service.
- It is likely that users will have more questions around privacy matters than in the past.
- Companies should gear themselves toward full compliance with applicable privacy law requirements and have the necessary resources available to deal with privacy matters raised by their customers.
The discussions also raise interesting questions around consent to use personal information:
- What does consent really mean?
- Can a company force me to give consent if I don’t want to?
- What happens if I don’t give consent?
- What does consent really entitle them to do with my information?
- Is it possible for them to use my information if I don’t give consent?
We will delve more into the topic of consent in a future article.
In the meantime, make sure you read and understand the privacy terms of the services you sign up for. If you cannot live with it, just don’t sign up – simple as that.
If you would like to receive a document indicating the changes from the current to the new WhatsApp privacy policy, you can email us on info@dommisseattorneys.co.za.
