The Center has defended in the Delhi High Court the legal validity of its new IT rule requiring messaging applications, like 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 Center said that Section 87 of the Information Technology Act enabled it to define 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 offenses 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 Center has guaranteed that stages “adapt clients’ data for business/business designs are not legitimately qualified for a guarantee 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 sworn statement documented 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 Center said reasons in regards to technical challenges can’t be a reason to decline consistence to the tradition that must be adhered to and if a stage doesn’t possess the ability to trace the “first originator” without breaking the encryption then it is the platform which “ought to develop such mechanism” in larger public duty.
“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 Center 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 seat headed by Chief Justice DN Patel had looked for the Center’s remain 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 recognizability necessity constrained 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 Center, in its reaction, has said that the appeal by WhatsApp isn’t maintainable as a challenge to the constitutionality of any Indian law is not maintainable at the instance of a foreign commercial entity.
It further guaranteed 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 Center said there are balanced governance to ensure that the rule isn’t misused or invoked in situations where other less nosy means are compelling in distinguishing the originator of the data.
The identification of the first originator relates just to viral substance identifying with appalling violations, as indicated in the standard, and not distinguishing all clients or residents, 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 Center has also said that in the event of any judicial procedure having any message on the stage as proof, WhatsApp would lose the defense 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 requested that the Central government “take all the steps necessary to identify persons who create and circulate electronic information” about certain offences such as sexual abuse.
