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“WHAT’S UP, GoI?”- WHATSAPP LOCKS HORNS WITH GOVERNMENT OF INDIA BEFORE THE HIGH COURT OF DELHI

June 15, 2021

By Nihit Nagpal and Manmeet Singh Marwah

INTRODUCTION

On February 25, 2021, the Ministry of Information, Government of India enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as the ‘Rules’) which have come into effect after 3 months of publication of these Rules. The said Rules requires significant social media intermediaries like Facebook, Instagram, WhatsApp etc. to comply with the guidelines.

Additionally, the Ministry of Electronics and Information Technology has further issued a Notification dated February 25, 2021 specifying a threshold for a social media intermediary to be considered a significant social media intermediary – which is any such entity/platform having fifty lakh registered users in India.

Being aggrieved by the enactment of the new Rules, WhatsApp LLC had recently approached the High Court of Delhi, inter alia claiming that the provisions and requirements under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are unconstitutional and are in violation of Articles 14[1], 19(1)(a)[2], 19(1)(g)[3], and 21[4] of the Constitution of India. WhatsApp LLC has specifically challenged Rule 4(2) of the said Rules, which requires WhatsApp to disclose the first originator of a message, and contested that subordinate legislation like the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 cannot be ultra vires of the parent statute i.e. Information Technology Act, 2000, under which the said Rules have been prescribed.

In response to the same, the Government of India released a statement, inter alia stating that Right to Privacy is a fundamental right and the Government respects the same, however no Fundamental Right is absolute and are subject to reasonable restrictions. The Right to Privacy and the provision pertaining to the first originator of information is an example of such a reasonable restriction, as stated by the Government.

The present article will analyze the WhatsApp’s core claims and the Government’s rebuttals/responses which is as under:

S.No. Grounds WHATSAPP LLC

 

GOVERNMENT OF INDIA
1. Violation of Fundamental Rights WhatsApp has challenged the validity of Rule 4(2)[5] of the said Rules on the grounds that it violates the fundamental rights of its users in India guaranteed under Articles 14, 19 and 21 of the Constitution of India and is ultra vires of the parent statute i.e. the Information Technology Act, 2000. The Government of India, through its statement has stated that under Rule 4(2) of the said Rules, an order to trace the first originator of a message shall be passed only for offences relating to integrity, security and sovereignty of India, which are punishable with imprisonment for not less than five years, as it is in public interest to investigate and punish such persons who started the crime(s).
2. End to End encryption- The difference between  WhatsApp and other social media websites. WhatsApp has contested that it does not have the means to see the messages of users or listen to their calls over WhatsApp, as the encryption and decryption of information shared between users occurs entirely on the device of such users. WhatsApp has further undertaken numerous measures for protecting the privacy of its users in India and worldwide including limiting the ability of users to forward messages to only five chats at a time, blocking users one does not wish to communicate with, and further providing a privacy setting to give users control over who can add them to groups. The Government of India has stated that the rule to trace the first originator of information is mandatory for each and every significant social media intermediary, irrespective of their method of operation and WhatsApp has to comply with the same. Moreover, WhatsApp seeks to mandate a privacy policy wherein it purportedly shares the data of all its users with its parent company, Facebook, for marketing and advertising purposes, but is refusing to comply with the law of the land. It cannot be denied that in cases of mob lynching, riots, terrorism etc., false messages are repeatedly shared, leading to serious crimes and disruption in public order.

 

3. Hon’ble Supreme Court’s precedence on Privacy WhatsApp has relied on the Hon’ble Supreme Court’s judgments in Justice K.S. Puttaswamy (Retd.) & Anr v.  Union of India & Ors[6], wherein the Apex Court had held that the State can successfully discharge the test of proportionality while affecting the privacy rights of its citizens, only with strict observance of the principles of data minimization and storage limitation. However, the new Rules requires WhatsApp to store additional data for every message sent in India which is contrary to data minimization principles.

 

Whereas, the Government of India has stated that post October 2018, WhatsApp has raised no specific objection in regard with traceability of the first originator, however, WhatsApp’s challenge against the Rules at the last moment is mischievous. Further the Hon’ble Supreme Court of India vide its order dated September 24, 2019 in Facebook Inc vs Union of India[7] had directed the Secretary, Ministry of Electronics & Information Technology give definite timelines in respect of completing the process of notifying the rules for social media intermediaries.

 

4. Test of Proportionality WhatsApp has contested that in the case of Justice K.S. Puttaswamy (Retd.) & Anr Vs Union of India And Ors, a test of proportionality was introduced to be taken in account while invading fundamental right of privacy which guarantees that the objects and the means adopted to achieve them should have a rational nexus. However, Rule 4(2) of the said Rules does not meet this requirement.

 

The Government of India has stated the basis of test of proportionality is whether a lesser effective alternative remedy exists and as per the Rules the first originator of information can only be traced when other remedies have proven to be ineffective, making the same a last resort measure and such information can only be sought as per a process sanctioned by the law.
5. Laws in other Countries WhatsApp has contested that no other Country has forced them to trace the first originator of a message by breaking the end-to-end encryption therefore, the said requirement by Government of India contravenes the intent of the Information Technology Act, 2000 to achieve “uniformity of the law” as per its preamble.

 

The Government of India has stated that in July 2019, the governments of the United States, Canada, New Zealand, Australia and United Kingdom had issued a communique, concluding that all technology companies around the world should include certain mechanisms in the design of their encrypted services and products so that governments, acting under appropriate legal authority, can gain access to the said data. Further, Brazilian Law Enforcement is considering pushing WhatsApp to provide criminals’ IP addresses, customer information, geo-location data and physical messages.

 

6. Technical Limitation WhatsApp has contested that the Right of Privacy is at stake of all its users in India as it would have to build a mechanism that would permit tracing of every communication sent in India on WhatsApp to identify the first originator of information, and there is no way to predict which message will be the subject of such an order seeking information of first originator.

 

The Government of India has stated that it is WhatsApp’s responsibility to find a technical solution so that Right of Privacy is not breached and information of those committing offences against the sovereignty and integrity of India causing public harm can be traced so that they may be punished.

 

CONCLUSION

The requirement under Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 for identifying the first originator of information in India might indeed be infringing upon the fundamental right to freedom of speech and expression granted under the Constitution of India. On the other hand, as stated by the Government, a Right must be balanced against the interests of the security of the state, by imposition of reasonable restrictions.

Introducing a traceability requirement for end-to-end encrypted services offered by social media intermediaries as their primary feature will lead to breaking of such encryption and is likely to compromise the privacy of individuals. However, from a broader perspective, the larger good of people should prevail over the individual rights of a person and tracing of a first originator might help in apprehending crimes, as misinformation tends to spread on social media platforms, as was seen in the recent case of the Delhi riots (February, 2020).

Therefore, the Hon’ble High Court of Delhi is set to hear both sides of the story and will decide if the new Rules are a blessing in disguise or a curse which not only threatens to take away safe harbor immunity granted under Section 79 of the Information Technology Act, 2000 to social media, but also makes them liable for criminal prosecution.

[1] Article 14 of Constitution. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[2] Article 19 of Constitution. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (a) to freedom of speech and expression;

[3] Article 19 of Constitution. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (g) to practise any profession, or to carry on any occupation, trade or business.

[4] Article 21 of Constitution. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.

[5] Rule 4 of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Additional due diligence to be observed by significant social media intermediary.— (2) A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form:

Provided that an order shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of 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:

Provided further that no order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information:

Provided also that in complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users:

Provided also that where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.

[6] Writ Petition (Civil) No. 494 of 2012

[7] Transfer Petition(s)(Civil) No(s).1943-1946/2019

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