WhatsApp – Opt-in or else?

WhatsApp – Opt-in or else?

On 4 January 2021, after quite a tumultuous 2020 caused by the COVID-19 pandemic, I woke up to a message on my WhatsApp that I needed to accept the new terms and conditions.


Being one of those people who actually read the fine print of everything before I consent, I realized that what I was being asked to consent to was actually already in progress. The only difference here is that I knew now what it was that I had tacitly consented to but had been unaware.

South Africa has developed data privacy laws. The notable legislation comprises the following:

  • Constitution of South Africa 108 of 1996
  • Electronic Communications Act 36 of 2005
  • Electronic Communications and Transactions Act 25 of 2002
  • Independent Communications Authority of South Africa Act 13 of 2000
  • Promotion of Access to Information Act 2 of 2000
  • Protection of Information Act 04 of 2013

It would then stand to reason that with these laws protecting us as citizens of the country, we should have our privacy protected and defended by these various pieces of legislation. Key to these is our Constitution, which guarantees us our right to privacy (subject to certain limitations of course).

One of those limitations is when we choose to opt- in for our data to be processed for a certain purpose as well as allowing our data to be used for certain services. When this happens, we are consciously limiting our own rights to privacy and are therefore willing participants to the processes involved. The procedures related hereto are covered within the legislative provisions of the POPIA.

Should a user then wish to continue using WhatsApp, they will need to consent to the sharing of information with Facebook, which owns the messaging platform. It is well known that Facebook derives its revenue from advertising and hence for them it would make business sense to leverage off the existing user base of WhatsApp, which has thus far been a free service.

Many critics are pointing to the fact that in October 2014, when Facebook acquired WhatsApp, they had indicated that they would not share information. However, in August 2016, they updated their privacy policies to indicate that they would be revising that outlook and the door for information sharing was opened. It should have rung warning bells by then that the next steps could be a further inroad into the data access that they already had to somehow convert that data into revenue.

Therefore, the communication in January 2021, in my view was to legitimize a process that was already in play. The difference here was that as consumers, we were not losing our security of communications on the platform. It is also noteworthy that on the WhatsApp platform they are responding to the outcry that has been raging for the past few weeks since that announcement, by explaining that the changes will mostly impact communications with a business on WhatsApp. The questions then become, why the outrage at the changes and what is the view of the South African Regulators in this regard?

In the next article, I will unpack the impact of the changes and relate these to the various privacy laws in Africa and abroad.

To send any comments you may have on the article, contact: info@machobanelaw.co.za

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