WhatsApp Legal Trouble Grows in India

April 18, 2019

WhatsApp Messenger is a Facebook owned company which runs through a mobile device but is also accessible through desktop computers. It allows the sending text messages, voice calls and video calls. It is based in Mountain View, California. In November 18, 2014, the company in partnership with Open Whisper Systems had provided end-to end encryption by incorporating incorporation protocol. Reportedly, in India, WhatsApp has over 200 million users.

Recently, a petition was preferred by the NGO named Centre for Accountability and Systemic Change before the Supreme Court of India seeking issuance of Writ of Mandamus against the Whatsapp thereby directing them to appoint Grievance Officer in India as well to comply with the tax laws of the country.

It was alleged that the WhatsApp company had failed to adhere with the IT (Intermediary) Rules of 2011 and IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011. At this instance, it is pertinent to peruse the respective rules. As per the IT (Intermediary) Rules of 2011, it has been stated that “(11) The intermediary shall publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3 can notify their complaints against such access or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint.”

As per IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011, it has been provided that “(9) Body corporate shall address any discrepancies and grievances of their provider of the information with respect to processing of information in a time bound manner. For this purpose, the body corporate shall designate a Grievance Officer and publish his name and contact details on its website. The Grievance Officer shall redress the grievances or provider of information expeditiously but within one month ‘ from the date of receipt of grievance.” It was contended by the NGO that the Grievance officer so appointed could not be based in USA so that its user can contact it for any grievance redressal. It was strenuously contended by the NGO that the company had failed to comply with the RBI guidelines with respect to the data localization and taxation policy. The NGO pleaded before the apex court that the foreign based company had no office in India and in order to operate payment service in India, it was their obligation to have their office and payments services in India. It was stated that it might affect the right to privacy if the data were not stored locally, that is, within the country.

As per RBI circular dated April 18, 2018, it is mandatory for all payment system providers to store the entire data in India and the system providers were required to comply with the same by October 15, 2018. After the deadline, it had been provided in the reports that the National Payment Coporation had sought an explanation from the Whatsapp company to ascertain whether the rules of RBI had been complied with. The apex court had asked the NGO to move an application to implead RBI as a party so that it could exercise a check to ascertain whether the financial payment services were in accordance with the RBI rules.

It is observed that the data localization is a major concern in India and as of now as there is no legal office of the WhatsApp Company in India, it is doubtful that the data generated in India is not mobilized outside the boundaries of India. The company had recently revealed that it had appointed Komal Lahiri as the Grievance Officer for the country and Abhijeet Bose as the head of WhatsApp India operations to adhere to the laws of the country.

Recently, WhatsApp is under immense pressure to trail the mechanism of identification of originators of message as required by the Government of India in order to curb down spreading of fake massages and rumors especially lynching and to culminate end-to-end encryption so that the required information is provided to the Government Security agencies as and when required. It is crucial and rather imperative for the WhatsApp company to act as per the rules and regulations required by the Government of India.

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