WhatsApp moves HC against new IT rules, terms them unconstitutional

WhatsApp moves HC against new IT rules, terms them unconstitutional

‘Violate Right To Privacy, Freedom Of Expression’

Abhinav Garg and Pankaj Doval

New Delhi:27.05.2021

TOI: Bhopal Edition 

In an unprecedented move, US chat messenger WhatsApp took the Centre to court over its new rules to trace the origins of “unlawful” messages and breaking its famed end-to-end encryption, arguing that the mandate violates citizens’ fundamental right to privacy and freedom of speech and expression, and thus should be dismissed as “unconstitutional, ultra vires the IT Act, and illegal”.

Filing a petition in the Delhi high court on the first day of the implementation of the new IT guidelines and rules which mandate top social media companies (such as WhatsApp, Facebook, Google and Twitter) to identify the source of an unlawful message within 72 hours, the top instant messenger said the guidelines are a violation of its rights under Articles 14 and 21 of the Constitution, and also the rights of its more than 400 million users in the country.

‘Act of defiance’, bid to stall new law, fumes govt

The Centre on Wednesday said WhatsApp’s move was an “act of defiance”, and accused it of engaging in an “unfortunate attempt” to prevent the implementation of new laws governing social media companies. Emphasising that the right to privacy is not absolute and comes with “reasonable restrictions”, the government also pointed that WhatsApp had gone to court citing privacy concerns, but its new norms had sought to share user data with its parent Facebook for marketing and advertising purposes, reports Pankaj Doval.

The government also claimed that India is not the only country to enforce such laws, and it has been implemented internationally too. P 7

Google, FB may comply, Twitter stand unclear

The government on Wednesday asked large social media platforms such as Facebook, Twitter, Google, Instagram, and WhatsApp to immediately report their status of compliance with the new mandate. The IT ministry sought details and contact information of chief compliance officer, resident grievance officer and nodal contact person who have been appointed by digital platforms under the new rules.

While the stand of microblogging app Twitter is still not clear, Facebook and Google have indicated to the government that they will be designating the required officers. Twitter has also not had any substantial discussion with authorities. P7

Journos could be at risk of retaliation, says WhatsApp

Petitioner (WhatsApp) respectfully submits that this requirement forces the petitioner to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely,” it said. It said that end-toend encryption ensures that every communication sent on WhatsApp, both messages and calls, can only be decrypted by the recipient. No one else, including the company, can read or listen to encrypted communications or determine their contents.

Mandating the identification of the first originator of information undermines the privacy and security provided by end-to-end encryption. “For example, journalists could be at risk of retaliation for investigating issues that may be unpopular; civil or political activists could be at risk of retaliation for discussing certain rights and criticising or advocating for politicians or policies; and clients and attorneys could become reluctant to share confidential information for fear that the privacy and security of their communications are no longer ensured.”

It argued that since there is no way to predict which message will be the subject of a tracing order, companies will need to build the ability to identify the first originator of every communication sent in India on their platforms for all time, infringing upon the privacy of even lawful users. “Enabling the identification of the first originator of information in India breaks endto-end encryption and the privacy principles underlying it… (it) violates the fundamental right to freedom of speech and expression, as it chills even lawful speech. Citizens will not speak freely for fear that their private communications will be traced and used against them, which is antithetical to the very purpose of endto-end encryption.”

WhatsApp said Rule 4(2) of the new norms for IT intermediaries, which mandates tracing the origins of messages flagged as unlawful, infringes upon the right to privacy without satisfying the three-part test set forth by SC — legality, necessity and proportionality.

LEGAL TUSSLE