Centre in Delhi HC defends IT rule requiring WhatsApp to trace originator of message

The Centre has defended in the Delhi High Court the legal validity of its new IT rule requiring messaging apps such as WhatsApp to iquesttraceiquest the first originator of the information saying that the law empowers it to expect such entities to create safe cyberspace and counter illegal content either themselves or by assisting the law enforcement agenciesThe Centre said that Section 87 of the Information Technology Act gave it the 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 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 childrenIn its affidavit filed in response to WhatsApps challenge to the rule on the ground that breaking the encryption invades its users privacy the Centre has claimed that platforms monetise users information for businesscommercial purposes are not legally entitled to claim that it protects privacyPetitioners WhatsApp and Facebook being multibillion dollar enterprises almost singularly on the basis of mining owning and storing the private data of natural persons across the world and thereafter monetizing the same cannot claim any representative privacy right on behalf of the natural persons using the platform said the affidavit filed by Ministry of Electronics and Information TechnologyWhatsApp collects users personal information and shares it with Facebook and thirdparty entities for businesscommercial purposes WhatsApps privacy policy of 2016 and its 2021 update In fact the regulators of various countries dearly hold that Facebook should be fixed with accountability for its services and data management practices it addedThe Centre said reasons regarding technical difficulties cannot be an excuse to refuse compliance to the law of the land and if a platform does not have the means to trace the first originator without breaking the encryption then it is the platform which iquestought to develop such mechanism in larger public duty The Rule does not contemplate the platforms breaking the endtoend encryption The Rule only contemplates the platform to provide the details of the first originator by any means or mechanism available with the platform If the platform does not have such means the platform ought to develop such mechanism considering the platforms widespread prevalence and the larger public duty the affidavit saidThe Centre said iquestif the intermediary is not able to prevent or detect the criminal activities happening on its platform then the problem lies in the platforms architecture and the platform must rectify their architecture and not expect the change of legislation Reasons regarding technical difficulties cannot be an excuse to refuse compliance to the law of the landIn August a bench headed by Chief Justice DN Patel had sought the Centres stand on WhatsApp petition challenging new rule on the ground it violates the right to privacy and is unconstitutional WhatsApps parent company Facebook has also mounted a similar challenge to the rule In its plea WhatsApp had said that the traceability requirement forced it iquestbreak endtoend encryptioniquest and thus infringe upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using its platform to communicate privately and securelyThe Centre in its response has said that the petition by WhatsApp is not maintainable as a challenge to the constitutionality of any Indian law is not maintainable at the instance of a foreign commercial entity It further claimed that Rule 42 is an embodiment of competing rights of citizens of India and aims to preserve the rights of vulnerable citizens within cyberspace who can be or are victims of cybercrime The Centre said there are checks and balances to ensure that the rule is not misused or invoked in cases where other less intrusive means are effective in identifying the originator of the informationAlso Read NCB misinterpreting WhatsApp chats to implicate me in drugs case Aryan Khan to Bombay HCThe identification of the first originator pertains only to viral content relating to heinous crimes as specified in the rule and not identifying all users or citizens it said If the IT Rules 2021 are not implemented the 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 saidThe Centre has also said that in case of any legal proceeding having any message on the platform as evidence WhatsApp would lose the defence of intermediary protection but it does not mean that WhatsApp will be held guilty and its officials would be legally responsibleThe courts can include WhatsApp as a respondent and consider Contributory Negligence and Vicarious liability on WhatsApp and its executives under Section 85 Such liabilities will fructify only when such a case comes up and WhatsApp is named as an entity that it is sufficiently proved that it has contributed to the commission of the crime it added The centre also said that the Supreme Court itself had asked the Central government to iquesttake all the steps necessary to identify persons who create and circulate electronic information about certain offences such as sexual abuseThis story has been sourced from a third party syndicated feed agencies Midday accepts no responsibility or liability for its dependability trustworthiness reliability and data of the text Midday managementmiddaycom reserves the sole right to alter delete or remove without notice the content in its absolute discretion for any reason whatsoever