WhatsApp Controversy- Right to Privacy & Traceability Clause, Today the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 were passed by the Central Government in February 2021. These rules substantially cover OTT (Over-The-Top) platforms and Social networks across India. The new Rules were enacted under the Information Technology Act of 2000 under Sections 69A(2), 79(2)(c), and 87[i]. The previously enacted Information Technology (Intermediary Guidelines) Rules 2011 have been superseded by these new rules.
On May 25, after the Ministry of Electronics and Information Technology (MEITy) propounded three-month deadline to adopt the new IT guidelines was expired, WhatsApp filed a complaint with the Delhi High Court, expressing its inability to comply with the ‘traceability’ clause of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. WhatsApp stated in its statement that “the Indian government’s addition of a traceability clause will jeopardize people’s basic Right to Privacy” under Article 21 of the Indian Constitution.
Traceability and Role of WhatsApp
The following are major modifications made to the new rules of the Information Technology Act of 2000 –
- The Rules are designed to give users of social media and over-the-top (OTT) platforms a reliable way to voice their complaints.
- They place a special emphasis on protecting women and children on social media from sexual offenses.
- The guidelines emphasize the need of online content creators and social media intermediaries according to the country’s Constitution and domestic laws.
- With these guidelines, India joins other international regimes that regulate digital media and offers a complete structure for digital media consumers’ protection.
WhatsApp filed a complaint with the Delhi High Court in response to the Centre’s newly enacted IT Rules, which would force messaging providers to ‘track’ the origin of specific communications transmitted on the service[ii]. “Requiring messaging platforms to track chats is the equivalent of asking us to preserve a fingerprint of every single message transmitted on WhatsApp” a WhatsApp official said in a statement. “This would shatter end-to-end encryption and severely harm people’s right to privacy.“
End-to-end encryption is a communication system in which only the people conversing can read the messages. In theory, it prohibits telecom providers, Internet providers, and even the communication service provider — in this case, WhatsApp – from accessing the encryption keys required to decode the discussion. According to experts, enacting Traceability would compel private corporations to gather and retain who said what and who shared what for billions of messages transmitted every day. This will necessitate platforms collecting more data than they needed just to hand it over to law enforcement.
Issue of WhatsApp in New-Fangled IT Guidelines
In a test of India’s right to privacy, Facebook Inc.’s WhatsApp messaging subsidiary filed a case in the Delhi high court to overturn new government rules requiring social media intermediaries to trace users’ encrypted chats.
When the notion of ‘traceability‘ was initially mooted in early 2019, a number of individuals wrote to the Indian government, expressing their concerns that such a provision would breach Indian users’ privacy. In addition to requiring “traceability,” the government of India announced IT laws earlier this year that might result in criminal penalties for non-compliance. WhatsApp has continuously fought judicial action that would disrupt end-to-end encryption throughout the world; for example, a comparable case is presently before the Supreme Court of Brazil[iii].
Furthermore, according to sources, Traceability as currently understood by WhatsApp would be ineffective in locating the originator of a message because people frequently see content on websites or social media platforms and then copy and paste it into chats, and it would be impossible to understand the context of how it was originally shared. However, this is a personal opinion.
Arguments from WhatsApp’s Lawsuit
WhatsApp stated in its appeal that the new restrictions, are a “dangerous invasion of privacy” and a threat to freedom of speech. The petition argued that enforcing Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) would disrupt WhatsApp’s encryption, which ensures that only the sender and receiver may read messages, as well as the privacy principles that govern it.
If a court or a competent body requests it under Section 69A of the IT Act, social media intermediaries must trace the source of a communication or post on their platform. While the laws state that such an order may only be issued for major criminal offenses, some of the categories under which authorities might collect data, such as “public order” might be construed broadly, putting free expression and the right to privacy at risk.
The Supreme Court’s decision on Puttaswamy case[iv], issued in 2017, stated that a person’s right to privacy must be protected except in circumstances when law, need, and proportionality all weigh against it. WhatsApp claims that the traceability rules infringe on users’ privacy and are in violation of the Puttaswamy ruling.
“The state’s security interests and the prevention of crime are legitimate reasons to get information. “However, any state interventions must pass proportionality tests and be based on established lawful standards, or else such intrusive instruments would turn out to be potential weapons, intruding on people’s privacy” said Rishi Anand, partner at DSK Legal.
The second lawyer, who did not want to be identified, stated that the laws give the government “vast powers.” “to collect data from platforms, which is incompatible with the right to privacy of individuals. “The intermediary standards are extremely explicit that if the government wants data, it only needs to ask the intermediary, and they must comply. However, the data belongs to the individuals, not the middlemen. How can the government make such a request without the agreement of the people? That is the reasoning, “he stated.
The government stated that it respects the right to privacy and that the obligation under the new IT laws to trace the origin of flagged communication is for the prevention and investigation of “extremely severe offences” involving India’s sovereignty or public order. WhatsApp’s last-minute objection to the intermediate standards, according to the IT Ministry, was an irresponsible attempt to prevent the rules from taking effect.
According to the report, the United Kingdom, the United States, Australia, New Zealand, and Canada all need social media companies to allow for lawful interception “What India is requesting is much less than what some other nations have requested. As a result, WhatsApp’s attempt to dismiss India’s Intermediary Guidelines as incompatible with the right to privacy is mistaken”, according to the official statement.
According to IT Minister Ravi Shankar Prasad, the government “is dedicated to ensuring the Right to Privacy to all its people, but it is also the government’s job to preserve law and order and guarantee national security.”
According to the new regulations of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 that came into effect on 26th May,2021 social media sites must have a grievance redressal procedure in place, as well as appoint a grievance officer who must file the complaint within 24 hours and resolve it within 15 days. As per the government, if there are complaints against users’ dignity, particularly women’s dignity, such as exposed private parts of persons, nudity, sexual acts, impersonation, and so on, social media sites must delete the content within 24 hours of receiving the complaint.
Further, a nodal contact person who should be based in India and be available 24 hours a day, 7 days a week to coordinate with law enforcement authorities. In addition, social media sites must employ a local grievance officer who would carry out the specified grievance resolution method. They’ll also have to submit a monthly report to the government on the amount of complaints they’ve received and how far they’ve progressed in resolving them.
Platforms would be forced to ‘track’ the original source of a malicious tweet or post, which might be related to India’s sovereignty, security, ties with other governments, rape, and so on, under the new social media guidelines. Meanwhile, Facebook and Google have promised the Indian government that they would follow the new laws.
[i] Information Technology Act 2000, https://www.meity.gov.in/content/information-technology-act-2000
[ii] WhatsApp moves Delhi high court against new guidelines, https://www.hindustantimes.com/india-news/whatsapp-moves-delhi-high-court-against-new-guidelines-101622004852954.html#:~:text=WhatsApp%20on%20Tuesday%20moved%20the,the%20company’s%20end%2Dto%2Dend
[iii] WhatsApp in Brazil back in action after suspension, https://www.bbc.com/news/world-latin-america-36836674
[iv] Justice K.S.Puttaswamy (Retd) vs Union Of India on 26 September, 2018
Law Student, B. S. Abdur Rahman Crescent Institute of Science And Technology, Chennai