WHATSAPP PRIVACY CASE, by Yogya Bhatia @LEXCLIQ

On 25th February 2021, the Central Government enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which cast various obligations on internet intermediaries, and in particular, on social media platforms.

Social media firms operating in India will have to implement the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. These new guidelines were released in February, giving social media platforms including Facebook, Instagram, Twitter and Koo three months to comply.

Requirement of the new IT Rules 2021 are-

  • to appoint a resident grievance officer as part of a larger grievance redressal mechanism
  • active monitoring of content on the platform
  • monthly compliance reports for Indian users
  • an oversight mechanism created by the Ministry of Electronics and Information Technology.

If social media companies do not comply with the IT Rules 2021 then it has been clearly mentioned in the rules, when an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable for such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code. The section 79 specifically gives digital media platforms such as Facebook, Twitter, YouTube and WhatsApp legal immunity in a way against liability for posts made on their networks, third party information or data. That legal immunity will be withdrawn if the intermediary does not comply with the rules.

On 25th May,2021 WhatsApp sued the Indian Government over a traceability clause in the new IT Rules 2021. The clause states that-under rule 4(2) of the guidelines, a social media intermediary could be required to trace an originator of a message or tweet or post only for the purposes of prevention, investigation, punishment etc.

WhatsApp’s argument-

  • WhatsApp has said that the new social media rules are unconstitutional. WhatsApp has made it clear that in order to trace the originator of any message, it will have to keep a log of all messages. Currently, due to the end-to-end encryption it cannot read a user’s messages. They argued that tracing even one message meant tracing every single message on the platform. It says that this will be the equivalent of a mass surveillance program.
  • WhatsApp also explained that traceability will not work due to E2E encryption. They argued that breaking end-to-end encryption (E2E) would weaken user privacy on the app and supress freedom of speech and freedom of expression. E2E encryption is turned by default on WhatsApp for all messages. Further, WhatsApp will have to re-engineer the app just for India. If WhatsApp had to comply with the rules, it would have to create a version of the app that supports traceability and does not have E2E encryption.
  • WhatsApp has made it clear that traceability is not fool proof. When users are forwarding, copying messages, finding the originator becomes difficult. WhatsApp said it might have to turn over the names of people who shared something even if they did not create it, shared it out of concern, or sent it to check its accuracy, which would lead to human rights violations as innocent people could end up getting caught in investigations or going to jail.

The Facebook-owned messaging app is invoking the 2017 Justice K S Puttaswamy vs Union of India judgment in support of its arguments.

 Government’s response to WhatsApp’s lawsuit-

The Ministry of Electronics and Information Technology has called WhatsApp’s refusal to comply with the new IT rules as an act of defiance. Further, it has said that the right to privacy will come with reasonable restrictions, adding that social media companies will only have to give the originator of a message in select cases and based on an order from a competent court.

I personally feel that the rules allow the government powers to seek data from platforms, which violates the individual’s right to privacy. The intermediary guidelines are very clear that if the government wants data, it just needs to ask the intermediary, and they will have to provide it. But the data belongs to individuals; it is not owned by intermediaries.

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