INTRODUCTION
WhatsApp is a messaging platform which is owned by Facebook. Indian Government recently came up with new Intermediary Guidelines which governs social media intermediaries that have more than 5 million registered users. It was issued in February 2021 with a deadline of 3 months. WhatsApp filed a petition before the High Court of Delhi on the last day of the deadline claiming that these rules to be unconstitutional and that they infringe the Right to Privacy of the users.
INTERMEDIARY GUIDELINES AND DIGITAL ETHICS CODE
Before these guidelines, social media companies were immune from any content posted by third parties. Now, the platforms are required to take down the flagged content within 36 hours. They are also required to trace the origin of a message. Non-compliance with new rules could take away the immunity these platforms previously enjoyed.
Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) makes traceability of messages mandatory. It provides that tracing the originator of any message or post by the social media intermediaries is indispensable when a court or a competent authority demands it under Section 69A, Information Technology Act.[1] It also states that such data can only be acquired for criminal offences of grave nature. However, it enables the authority to seek the data under some other grounds like ‘public order’ which has a wide scope for interpretation as held in Shreya Singhal v. Union of India[2] and thus, misuse too. It could lead to curtailment of Freedom of Speech and Right to Privacy.
ARGUMENT BY WHATSAPP
WhatsApp claims that the new rules are a “dangerous invasion of privacy” and pose a threat to free speech. WhatsApp’s end-to-end encryption policy will be endangered by Rule 4(2) of the Information Technology Code. Encryption provides that only the sender and receiver of the message can read the message so that the user’s privacy is maintained. According to them, the new rules go against this privacy principle and thus, cannot be adopted.
Another argument that was raised against these new rules is that they provide the government too much power while threatening user’s right to privacy. The rules state that intermediaries are supposed to give data whenever government asks them. However, the government has overlooked a very important fact that the data does not belong to the intermediaries, it belongs to the user and thus, the user’s consent is imperative. Tracing user’s messages without their consent is a grave violation of their fundamental rights.
Furthermore, if WhatsApp traces the originator of a message or post, it will have to keep a record of every message sent and received. This goes against the very spirit of a free country and undermines the sovereignty of India as it is a form of mass surveillance. Tracing every message is tantamount to keeping a fingerprint on every single message and that is contradictory to WhatsApp’s concept of end-to-end encryption. It is contended that private companies will be forced to gather and keep “who-said-what and who-shared-what” data for billions of messages every day just to comply with new rules. Another issue with traceability is that it is impossible to fathom the original context of messages as users copy-paste from different websites and platforms.
The landmark judgement Justice K S Puttaswamy vs Union of India[3] dealing with the fundamental right to privacy has been mentioned by WhatsApp. Principles laid down by this judgement suggests that the new rules are in clear violation of the fundamental right to privacy and therefore, traceability should be held unconstitutional.
GOVERNMENT’S INTENTION
The government’s intention behind enforcement of these rules is to ensure State’s security and prevent crime. The government claims that traceability of messages will help in solving crimes and prevent some from even taking place. The objective behind this provision is to curb the spread of fake information by tracing its origin.
The purpose of this rule is to maintain the sovereignty and integrity of India. Government can only ask the intermediary for the data only for the purposes of prevention, detection, investigation, prosecution, or punishment of an offence. However, it is inarguable that these rules invade the privacy of the users.
DRAWBACKS
If these rules are implemented, the Indian users will face the followings risks:
- Users won’t be able to communicate freely because their private messages could be used against them.
- Journalism would be affected unfavourably because of the fear of retaliation.
- Criticizing the government would be difficult for activists and other citizens.
- Lawyers will not be able to share sensitive information regarding a case or client.
- Messages could be misinterpreted because of lack of context.
- It could become a tool for mass surveillance.
PETITION AGAINST WHATSAPP
Ironically, while WhatsApp has challenged the government’s new rules, the government of India has challenged the privacy policy of WhatsApp before the same Court. WhatsApp’s new policy allows them to share commercial user data with its parent company, Facebook. Though, is seems mischievous that WhatsApp is fighting for the privacy of its users while its new policy acts otherwise, it has to be understood that WhatsApp’s concerns regarding the new IT Rules are not baseless and out of spite. Their claim that the Rules are unconstitutional and ultra vires are backed by Constitutional provisions and landmark judgement.
CONCLUSION
The government of India has been exceeding its power and using it for political purposes. Though the Government says that this a crucial step for addressing misinformation, the fact that cannot be overlooked is that the rules violate users’ right to privacy and freedom of speech. It undermines the sovereignty of the country. If these rules are implemented, it could become a tool for mass surveillance. India is a free country and people have the right to express their views freely. If their personal messages are subjected to public scrutiny, it would be a downfall of fundamental rights.
No other country has such kind of rules for messaging platforms which begs the question why is it crucial for India? The government could find other methods which do not invade the privacy of the citizens and maintain their freedom of speech. The government needs to address how WhatsApp messages are an immediate threat to society and must be supervised. This case is the true test of the right to privacy.
Author(s) Name: Muskan Khandelwal (Symbiosis Law School, Pune)
[1] Information Technology Act, 2000, s.69A
[2] (2013) 12 SCC 73.
[3] AIR 2017 SC 4161.
