New Delhi: The messaging service platform WhatsApp on Thursday submitted before the Delhi High Court that if it is made or compelled to break the encryption of messages, then the platform will stop functioning. The submissions came while the division bench led by the Acting Chief Justice was hearing the petitions moved by WhatsApp and Facebook challenging newly amended IT Rules.
"As a platform, we are saying, if we are told to break encryption, then WhatsApp goes," the lawyer who appeared for WhatsApp submitted. The requirement was against the privacy of users and the rule was introduced without any consultation, said WhatsApp while opposing the amendment in IT Rules.
Earlier, the Centre had told the Delhi High Court that WhatsApp and Facebook which monetises users' information for business or commercial purposes are not legally entitled to claim that it protects privacy. In fact, the regulators of various countries clearly hold that Facebook should be fixed with accountability for its services and data management practices.
Ministry of Electronics and Information Technology (MeitY's) through an affidavit opposing the petition of Whatsapp and Facebook challenging newly amended IT Rules, states that WhatsApp has already violated the fundamental rights of the users in India by denying them any dispute resolution rights in the country. The clauses of Dispute Resolution and the Governing Law are reproduced below to testify the same.
Facebook and Whatsapp have recently challenged the new rules on grounds that they violate the right to privacy and are unconstitutional. Ministry has also told the Delhi High Court that if the IT Rules 2021 are not implemented, 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 further stated that MeitY's approach to the framing of legislation and rules is founded on the principles that the Internet should be open, safe trusted, Platforms should be accountable to users and no one should be allowed to take away the fundamental rights of Indian citizens guaranteed by the Constitution of India.
It added that the said statutory provision and the Rules are merely a manifestation of settled global jurisprudence developing around the secondary liability or responsibility of intermediaries in the changing dynamic of human interactions that World-wide-web and the platforms in the nature of "significant social media intermediaries" enable.
It also submitted that significant social media intermediaries assist and enable the exchange and publication of ideas and information between persons by providing a platform accessible to all at an enormous scale and speed, which has been unforeseen in human history. It is submitted that the principle of secondary liability or responsibility on the part of significant social media intermediaries provides that despite the intermediary not being the creator of the problematic or illegal content, such significant social media intermediaries would have to abide by certain stipulations in case such problematic content breaches the stipulations of the law as it enables projecting or publicising or advertising the content.
It is submitted that the platform that is provided by the significant social media intermediaries casts a corresponding responsibility on the same in the nature of due diligence and cooperation in the case of the legislatively demarcated fields. Earlier WhatsApp through its statement had said "Requiring messaging apps to 'trace' chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermine people's right to privacy."
A WhatsApp spokesperson said, "We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us."
On February 25, the Centre framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, in the exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
The new guidelines issued by the government of India mandated a grievance redressal system for over-the-top (OTT) and digital portals in the country.
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