WhatsApp LLC on Thursday told the Delhi High Court that the popular messaging platform will end if it is made to break encryption of messages. “As a platform, we are saying, if we are told to break encryption, then WhatsApp goes,” counsel Tejas Karia, appearing for Whatsapp, told a Division Bench comprising Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora.
The HC was hearing a petition by WhatsApp and its parent company Facebook Inc (now Meta) challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which makes it obligatory for social media intermediaries requiring the messaging app to trace chats and make provisions to identify the first originator of information on the court’s order.
What’s the WhatsApp vs Centre dispute about?
WhatsApp and its parent company Meta (formerly Facebook) are challenging a rule in India’s IT laws that requires them to identify the originator of messages on their platform.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were announced by the government on February 25, 2021 and required large social media platforms like Twitter, Facebook, Instagram and WhatsApp to comply with the latest norms.
Why is WhatsApp against the rule?
WhatsApp says it can’t comply without breaking its end-to-end encryption, a feature that scrambles messages so only the sender and receiver can read them. This, they argue, violates user privacy. In its petition filed in 2021, WhatsApp has said the requirement of intermediaries enabling the identification of the first originator of information in India upon government or court order puts end-to-end encryption and its benefits “at risk”.
WhatsApp LLC has urged the high court to declare Rule 4(2) of the intermediary rules as unconstitutional, ultra vires the IT Act and illegal and sought that no criminal liability be imposed on it for any alleged non-compliance with Rule 4(2) which requires enabling the identification of the first originator of information. WhatsApp said that the traceability provision is unconstitutional and against the fundamental right to privacy.
What does the Indian government say?
The government argues traceability is needed to tackle harmful content like fake news and hate speech, especially during sensitive situations. They believe social media platforms have a responsibility for online safety. In its reply, the Centre has said 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 Centre has told the court that Section 87 of the Information Technology Act gave it power to formulate Rule 4(2) of the Intermediary Rules which mandates a significant social media intermediary to enable the identification of the first originator of an information in “legitimate state interest” of curbing the menace of fake news and offences concerning national security and public order as well as women and children.
The Centre has also stated that if a platform does not have the means to trace the first originator without breaking the encryption then it is the platform which “ought to develop such mechanism” in larger public duty.
Has any other country implemented such a rule?
WhatsApp claims no other country has a similar law, including Brazil. “There is no such rule anywhere else in the world. Not even in Brazil,” the lawyer appearing for WhatsApp said, adding that the requirement was against the privacy of users and the rule was introduced without any consultation. In September 2023, the UK government conceded that it will not use controversial powers in the online safety bill to scan messaging apps for harmful content until it is “technically feasible” to do so, postponing measures that critics say threaten users’ privacy.
What’s the HC said?
The Delhi High Court will hear the case in August 2024. This combines petitions filed against the IT Rules in various High Courts across India. After brief arguments, the HC called for a balance to be struck and posted the case for further hearing on August 14. “…Privacy rights were not absolute” and “somewhere balance has to be done”, the HC observed.
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