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WhatsApp lawsuit: Act of defiance… privacy a right but national security also our job, says Centre

“WhatsApp’s challenge, at the very last moment, and despite having sufficient time and opportunity available during consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect,” the MeitY said.

Written by Aashish Aryan | New Delhi |
Updated: May 27, 2021 1:10:35 pm
The press release also questions WhatsApp’s own commitment to user privacy pointing out that the company plans to “share the data of all its users with its parent company, Facebook, for marketing and advertising purposes.”

Messaging platform WhatsApp’s move to legally challenge the provision of tracking the first originator of a message is an “unfortunate attempt” and “a clear act of defiance of a measure whose intent can certainly not be doubted”, the Ministry of Electronics and Information Technology (MeitY) said Wednesday.

“WhatsApp’s challenge, at the very last moment, and despite having sufficient time and opportunity available during consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect,” the MeitY said.

On May 25,the last day to comply with the new social media and instant messaging platform guidelines, WhatsApp approached the Delhi High Court with a plea challenging the provision of tracing the first originator of the message. In its plea, WhatsApp said that this would require it to break its “end-to-end” encryption on its platform, which would in turn infringe upon the fundamental right to privacy of users.

“WhatsApp thus enables government officials, law enforcement, journalists, members of ethnic or religious groups, scholars, teachers, students, and the like to exercise their right to freedom of speech and expression without fear of retaliation,” the Facebook-owned platform said in its plea to the Delhi High Court.

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IT Minister Ravi Shankar Prasad, however, sought to dismiss the claim and said that none of the measures proposed by the government under the new IT rules would impact the functioning of WhatsApp “in any manner whatsoever and for the common users, there will be no impact”.

“The Government of India is committed to ensure the Right of Privacy to all its citizens but at the same time it is also the responsibility of the government to maintain law and order and ensure national security,” Prasad said.

In its statement Wednesday, the MeitY said that the rules had been formed after consultations with various stakeholders and social media intermediaries, “including but not limited to WhatsApp”. The instant messaging platform too has, since 2018, not made any written objections to the requirement of tracing the first originator of the message when it comes to serious offences, it said.


The clause, the impact

The traceability provision which requires platforms to locate the first originator of information, whenever authorities put in such a request, will also impact other end-to-end encrypted apps like Signal and Telegram. But the impact will be significant on WhatsApp, which has nearly 450 million users in the country.

“They have generally sought time to extend the time for enforcement of guidelines but did not make any formal reference that traceability is not possible,” the MeitY said.

Stating that the rule on tracing the first originator of the message was “in public interest”, the MeitY said that the rule the government was seeking to implement was “significantly” less stringent than what some other countries had demanded.

“WhatsApp’s attempt to portray the Intermediary Guidelines of India as contrary to the right to privacy is misguided. On the contrary in India, privacy is a fundamental right subject to reasonable restrictions,” it said.

On February 25 this year, the IT ministry had notified the guidelines for social media intermediaries, as a part of which they had asked instant messaging apps such as WhatsApp to make provisions to trace the first originator on their platform. The ministry had then said that such information would be sought from the intermediary only if there was a judicial order passed by a court of competent jurisdiction or under Section 69 of the IT Act.

The platform will also, the ministry had then said, be liable to disclose the originator of the message “only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order”.

Social media intermediaries had been also asked to enable ways to trace originators of messages which call for incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.

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