Centre in HC defends IT rule requiring WhatsApp to trace originator of message
New Delhi, Oct 22: The Centre has defended in the Delhi High Court the legal validity of its new IT rule requiring messaging apps, such as WhatsApp, to "trace" the first originator of the information, saying that the law empowers it to expect such entities to create safe cyberspace and counter illegal content either themselves or by assisting the law enforcement agencies.
The Centre said that Section 87 of the Information Technology Act gave it the power to formulate Rule 4(2) of the Intermediary Rules -- which mandates a significant social media intermediary to enable the identification of the first originator of information in "legitimate state interest" of curbing the menace of fake news and offences concerning national security and public order as well as women and children.
In its affidavit filed in response to WhatsApp's challenge to the rule on the ground that breaking the encryption invades its users' privacy, the Centre has claimed that platforms "monetize users' information for business/commercial purposes are not legally entitled to claim that it protects privacy".
"Petitioners (WhatsApp and Facebook), being multi-billion dollar enterprises, almost singularly on the basis of mining, owning and storing the private data of natural persons across the world and thereafter monetizing the same, cannot claim any representative privacy right on behalf of the natural persons using the platform," said the affidavit filed by Ministry of Electronics and Information Technology.
"WhatsApp collects users' personal information and shares it with Facebook and third-party entities for business/commercial purposes (WhatsApp's privacy policy of 2016 and its 2021 update). In fact, the regulators of various countries dearly hold that Facebook should be fixed with accountability for its services and data management practices," it added.
The Centre said reasons regarding 'technical difficulties cannot be an excuse to refuse compliance to the law of the land and if a platform does not have the means to trace the "first originator" without breaking the encryption then it is the platform which "ought to develop such mechanism" in larger public duty.
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"The Rule does not contemplate the platforms breaking the end-to-end encryption. The Rule only contemplates the platform to provide the details of the first originator by any means or mechanism available with the platform. If the platform does not have such means, the platform ought to develop such mechanism considering the platforms widespread prevalence and the larger public duty," the affidavit said.
The Centre said "if the intermediary is not able to prevent or detect the criminal activities happening on its platform, then the problem lies in the platform's architecture and the platform must rectify their architecture and not expect the change of legislation. Reasons regarding 'technical difficulties' cannot be an excuse to refuse compliance to the law of the land."
In August, a bench headed by Chief Justice DN Patel had sought the Centre's stand on WhatsApp petition challenging new rule on the ground it violates the right to privacy and is unconstitutional.
WhatsApp's
parent
company
Facebook
has
also
mounted
a
similar
challenge
to
the
rule.
In
its
plea,
WhatsApp
had
said
that
the
traceability
requirement
forced
it
"break
end-to-end
encryption" and
thus
infringe
upon
the
fundamental
rights
to
privacy
and
free
speech
of
the
hundreds
of
millions
of
citizens
using
its
platform
to
communicate
privately
and
securely.
The
Centre,
in
its
response,
has
said
that
the
petition
by
WhatsApp
is
not
maintainable
as
a
challenge
to
the
constitutionality
of
any
Indian
law
is
not
maintainable
at
the
instance
of
a
foreign
commercial
entity.
It further claimed that Rule 4(2) is an "embodiment of competing rights of citizens of India" and aims to preserve the "rights of vulnerable citizens within the cyberspace who can be or are victims of cyber-crime".
The Centre said there are checks and balances to ensure that the rule is not misused or invoked in cases where other less intrusive means are effective in identifying the originator of the information.
The
identification
of
the
first
originator
pertains
only
to
viral
content
relating
to
heinous
crimes,
as
specified
in
the
rule,
and
not
identifying
all
users
or
citizens,
it
said.
"If
the
IT
Rules
2021
are
not
implemented
the
law
enforcement
agencies
will
have
difficulty
in
tracing
the
origin
of
fake
messages
and
such
messages
will
percolate
in
other
platforms
thereby
disturbing
peace
and
harmony
in
the
society
further
leading
to
public
order
issues," the
affidavit
said.
The
Centre
has
also
said
that
in
case
of
any
legal
proceeding
having
any
message
on
the
platform
as
evidence,
WhatsApp
would
lose
the
defence
of
'intermediary
protection'
but
it
"does
not
mean
that
WhatsApp
will
be
held
guilty
and
its
officials
would
be
legally
responsible".
"The
courts
can
include
WhatsApp
as
a
respondent
and
consider
'Contributory
Negligence'
and
'Vicarious
liability
on
WhatsApp
and
its
executives'
(under
Section
85).
Such
liabilities
will
fructify
only
when
such
a
case
comes
up
and
WhatsApp
is
named
as
an
entity
that
it
is
sufficiently
proved
that
it
has
contributed
to
the
commission
of
the
crime,"
it
added.
The centre also said that the Supreme Court itself had asked the Central government to "take all the steps necessary to identify persons who create and circulate electronic information" about certain offences such as sexual abuse.