Whatsapp, Facebook not legally entitled to assert they defend privateness: Centre tells Delhi HC

The Centre on Friday instructed the Delhi High Court that WhatsApp and Facebook “which monetise users’ personal information” for industrial functions should not legally entitled to assert that they defend privateness and that the moment messaging platform must create a mechanism to determine an illegal data’s origin and originator with out compromising end-to-end encryption.

The submission was made in a reply filed in response to WhatsApp’s petition difficult the 2021 IT Rules’ requirement of enabling the traceability of on-line messages.

The authorities mentioned that the petition filed by WhatsApp shouldn’t be maintainable as the corporate is a international entity and it can not declare rights beneath Article 21, together with the best to privateness.

“The IT Rules are framed based on the basis of numerous parliamentary and judiciary recommendations which sought to protect the users against child sex abuse material, fake news and other harmful online content which was considered to be beyond the bounds of free speech,” the Ministry of Electronics & IT instructed the court docket.

The authorities mentioned that Rule 4(2) neither mandates breaking WhatsApp’s encryption nor the State seeks to take action however the “assertion that there exists a difficulty in changing the architecture” of the numerous social media middleman can’t be a floor for judicial evaluate.

“The Government expects the platforms to either prevent online illegal content by themselves or assist law enforcement agencies to identify the originator of such unlawful content,” the reply reads.

The Facebook-owned firm in its petition has mentioned that requiring the intermediaries to allow identification of the primary originator of data on their platforms may put journalists and activists susceptible to retaliation in India and in addition infringe upon individuals’s elementary proper to freedom of speech and expression.

The authorities mentioned that it’s for WhatsApp to create a mechanism to allow identification of the primary originator with out disturbing encryption. Any order beneath the rule could be handed just for the needs of prevention, detection, investigation, prosecution or punishment of an offence associated to ‘sovereignty and integrity of India, the Security of State, pleasant relations with international States, or public order, or of incitement to such an offence and in relation with rape, sexually specific materials or youngster sexual abuse materials, it mentioned.

“If the government can identify the first originator through any other means, then the order will not be passed under the rule,” reads the reply additional.

The authorities within the reply has additionally raised questions over WhatsApp’s privateness coverage and mentioned that when private knowledge of customers is shared with Facebook, it may be used for profiling.

“Such profiling is also feasible on the political and religious views and can be used for any activity which can harm the security of the nation, its sovereignty and integrity besides affecting individual privacy,” it has mentioned.

Rule 4(2) of the Intermediary Rules, which WhatsApp needs struck down, states that “a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required” by a judicial order or an order handed by a reliable authority beneath the IT Act.

WhatsApp has argued that there isn’t a strategy to predict which message would be the topic of such a tracing order. “Therefore, Petitioner (WhatsApp) would be forced to build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever. This breaks end-to-end encryption and the privacy principles underlying it, and impermissibly infringes upon users’ fundamental rights to privacy and freedom of speech,” it has contended.