Statement after social media firm moves HC on new rules
WhatsApp on Tuesday filed a legal challenge against the Indian government, protesting new IT rules before the Delhi High Court
The government, in response to WhatsApp moving the Delhi High Court against new rules that would require it to break end-to-end encryption, said that it respects the Right to Privacy and has no intention to violate it. At the same time, it said compliance requirement is necessary for public interest and identifying the first originator of messages leading to crimes.
Ravi Shankar Prasad, Union minister for Electronics, IT and law, in a statement stressed that according to all established judicial dictum, no fundamental right, including the right to privacy, is absolute and it is subject to reasonable restrictions.
“It is very important to note that such an order to trace the first originator, under Rule 4(2) of the said guidelines, shall be passed only for the purposes of prevention, investigation, punishment, etc of inter alia an offence relating to sovereignty, integrity and security of India and public order incitement to an offence relating to rape, sexually explicit material, or child sexual abuse material punishable with imprisonment for not less than five years,” the Ministry of Electronics and Information Technology (MeitY) said in a statement on Wednesday.
While defending the new rules, the government asked social media companies to report their status on compliance with the new rules, which kicked in from Wednesday.
On Tuesday evening, WhatsApp moved the Delhi High Court, and said the new IT rules that would require messaging services providers to “trace” the origin of particular messages would undermine the privacy of individuals.
Under the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Section 4(2) requires that social media intermediaries with more than five million users and providing messaging services enable identification of the first originator of problematic content that may harm the country’s interests and several other provisions described in the Rules.
The social media intermediary will have to do this in response to a judicial order passed by a court or by a competent authority under Section 69 of the IT Act.
The minister however said “none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever, and for the common users, there will be no impact.”
The rule to trace the first originator of information, according to the ministry, is mandatory for every significant social media intermediary, irrespective of the method of operation.
“The entire debate on whether encryption would be maintained or not is misplaced. Whether Right to Privacy is ensured through using encryption technology or some other technology is entirely the purview of the social media intermediary. It is WhatsApp’s responsibility to find a technical solution, whether through encryption or otherwise, that both happen,” Prasad said.
In its petition, WhatsApp argued that the new rules would require WhatsApp to build the ability to identify the first originator of every communication sent in India on its platform, as there is no way to predict which message will be the subject of such an order seeking first originator information.
WhatsApp further said in its petition that according to the existing law, to justify an intrusion into the fundamental right of privacy, the three requirements of legality, need — defined in terms of a legitimate State aim — and proportionality must be met.
The ministry, on the other hand, said the government is not enacting these rules in isolation and they have bglobal precedence. The governments of the UK, the US, Australia, New Zealand, and Canada, too, have stated that technology companies must give access to the data in a readable and usable format. “What India is asking for is significantly much less than what some of the other countries have demanded,” the statement read.
WhatsApp has filed a similar case in the Brazilian apex court.
A test of the right of privacy laws
Many legal experts believe this will test India’s right to privacy laws and have argued that the traceability provision is unconstitutional in part because of a 2017 Supreme Court decision that held people have a fundamental right to privacy.
“In a Parliamentary system like in India, it is Parliament that makes law. This law is called primary legislation, like the Information Technology Act, 2000. This contains broad outlines and principles that make the law on the subject. Then, Parliament delegates secondary or subordinate legislation to the Executive. The Executive came up with the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. This secondary legislation needs to be within the aegis of the primary law — the IT Act. There is much debate that it isn’t, and thus the potential for challenge,” said Sajai Singh, partner, J Sagar Associates.
Many argued who would decide the need to find the original sender of a message. “The only point of contention, therefore, is when and how, and at what point of time, is the first originator to be identified? The point at which the government asks WhatsApp through a legal notice (as said in the rule), or is it at the point when the person sends the message? That becomes the crux of the issue. There is no clarity on this aspect in the impugned Rules,” said N S Nappinai, advocate, Supreme Court & founder-Cyber Saathi.