A bench of Chief Justice J S Khehar and Justice D Y Chandrachud said when the matter deals with public at large, it becomes a constitutional issue.
"We are referring the matter to a five-judge Constitution bench. It is an issue which concerns the larger issue of privacy and Article 21 of the Constitution. When it concerns the public at large, it becomes a constitutional issue," it said.
Senior advocate Kapil Sibal, appearing for one of the parties, said they have succeeded in the Delhi High Court and it was purely a contractual issue which does not need hearing by a Constitution bench.
"You should raise the issue before the Constitution bench on April 18 and formulate the issues for hearing," the judges said.
The apex court had earlier indicated that the issue might come up for hearing before a Constitution bench during the summer vacation which commences from May 11.
The Centre on Wednesday informed the apex court that it will soon formulate a regulatory regime for Over-The-Top (OTT) services like WhatsApp, Facebook, Skype, WeChat and Google Talk, similar to the one existing for all telecom operators.
“Department of Telecommunication (DoT) is seized of the issue and shall finalize policy direction on various aspects of regulatory and licensing framework for OTT services and net neutrality after taking into account the TRAI recommendations on the subject,” the Centre said in its affidavit.
DoT’s main argument was that OTTs use the network of telecom service providers to offer app-based products as well as compete by offering messaging and telephone facilities, and are still not subjected to any regulatory mechanism.
The assertion came in response to the petition filed by Karmanya Singh Sareen and Shreya Sethi before the Supreme Court claiming that there is no protection of data on Facebook and WhatsApp.
“OTT services are governed in some respect by the provisions of Information Technology Act, 2000 and are not subject to the same regulatory mechanism that is enforced on conventional voice and messaging services provided by telecom service providers,” Karmanya Singh was quoted by Times of India as saying.
The appeal, filed in the apex court by Karmanya Singh Sareen and Shreya Sethi, slammed the High Court verdict on grounds that no relief was granted for data shared by users post September 25, 2016 and it amounted to infringement of fundamental rights under Article 19 (Freedom of Speech and Expression) and 21 (Right to Life) of the Constitution.
The counsel appearing for the petitioner said that a new WhatsApp policy which enabled it to the share user's information with social networking site Facebook, not only hampers privacy under Article 21 but also the freedom of speech under Article 19 of the Constitution.
On January 16, the court had sought response from the Centre and telecom regulator TRAI on a plea that privacy of over 157 million Indians has been infringed by social networking sites -- WhatsApp and Facebook -- for alleged commercial use of personal communication.
The High Court, in its verdict in September last year, had directed WhatsApp to delete the information/data of persons who opted out of the service before September 25, 2016 and not to share it with Facebook or its group companies.
The High Court had also directed the Centre and the TRAI to examine the feasibility of bringing the functioning of Internet messaging applications like WhatsApp under statutory regulatory framework.
WhatsApp had earlier informed the High Court that when a user account is deleted, the information of that person is no longer retained on its servers.