Facebook-owned WhatsApp challenged the Government of India’s new IT Rules in Delhi High Court saying that tracing the originator of fake news and objectionable messages is against the right to privacy of individuals and their fundamental right to freedom of speech and expressions. Tracing the messages to find the originator as per the Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is totally unreasonable against the rights given to citizens by the Indian Constitution, said WhatsApp in their petition, adding that the new rules are against the company’s end-to-end encrypted platform.
Interestingly former Telecom IT Minister and noted lawyer Kapil Sibal represent Facebook and WhatsApp now in courts. Sibal and noted Arvind Datar are expected to argue for WhatsApp in this case also against the Government of India. Responding to the petition, IT Minister Ravi Shankar Prasad on Wednesday said that these provisions are meant for serious crimes only and these provisions are needed for investigative agencies to find the real culprits.
WhatsApp also pointed out that that the Rule violates Sections 69A and 79(2) of the Information Technology Act, which defines the scope of the Centre’s authority.
In the petition, WhatsApp apprehended that such a system could put journalists at risk of retaliation for investigating issues that may be unpopular. Moreover, civil or political activists could face the heat of discussing certain rights and criticizing or advocating for politicians or policies. Clients and attorneys could become reluctant to share confidential information for fear that the privacy and security of their communications are no longer ensured, WhatsApp has said.
“With end-to-end encryption, users feel safe to communicate freely…Once citizens become aware that SSMIs have built the ability to identify the first originator of information in India on their end-to-end encrypted messaging services, individuals will not feel safe to speak freely for fear that their lawful private communications will be used against them, thereby infringing their rights to privacy and free speech,” said the petition.
The messaging company WhatsApp LLC has submitted that the rule on traceability violates the fundamental rights to privacy and freedom of speech and expression guaranteed under Articles 19 and 21 of the Constitution of India, and Sections 69A and 79 Information Technology Act, 2000.
In its challenge to Rule 4(2) of the Intermediary Guidelines, which requires intermediary platforms to make provisions for “identification of the first originator of the information”, WhatsApp has argued that the provision is manifestly arbitrary and disproportionate as the harm it causes far outweigh its purported benefits. Forcing the platform to build the ability to identify the first originator of information in India would infringe upon the privacy of every individual who uses WhatsApp in India, the company has argued. It is further contended that the Rule falls foul of the three-fold test of legality, necessity and proportionality laid down by the Supreme Court in K S Puttaswamy Vs. Union of India, famously known as the Aadhar case.
WhatsApp also pointed out that that the Rule violates Sections 69A and 79(2) of the Information Technology Act, which defines the scope of the Centre’s authority. The International messaging company now owned by Facebook has explained that although Section 69A(2) inter alia empowers the Central government to prescribe procedures to block access, determination of the first originator of information in India on end-to-end encrypted platforms is in excess of that power.
“Section 79 only allows Respondent to prescribe the “due diligence” guidelines that intermediaries must observe to maintain their exemption from liability for third-party content on their respective platforms. However, Impugned Rule 4(2) seeks to impose obligations that fall far outside “due diligence”, as it forces fundamental alterations to WhatsApp by breaking end-to-end encryption and changing the fundamental nature of the service that people love and use today in India and across more than 100 countries,” said WhatsApp, adding that no other country compels intermediaries to change their systems to enable the identification of the first originator of information on end-to-end encrypted messaging services.
 ‘Need Info Only for Very Serious Offence’: India’s Strong Reaction to WhatsApp’s Lawsuit – May 26, 2021, News 18
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