WHY DID WHATSAPP FILE A LAWSUIT AGAINST THE GOVERNMENT OF INDIA?

WhatsApp, a social media app, filed a lawsuit against the Indian Government on the grounds that the new IT rules infringed the right to privacy enshrined under Article 21A of the Constitution. WhatsApp moved the Court to these rules that require social media intermediaries to trace users’ encrypted messages in a test for right to privacy in India. Moreover, it is argued to be dangerous to the freedom of speech and expression owing to its stifling nature.

Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) mandates social media platforms to inform the concerned authorities, if questioned, regarding the originator of a message or a post on their platform. However, these are subject to the facts and circumstances of a case, and in serious criminal offences only. However, the loosely worded terms are vague, and could be interpreted broadly.

WhatsApp has argued that the rules interfere with its end to end encryption policy and the traceability clause weaken would weaken user’s privacy on the app. Further, WhatsApp would have had to re-engineer and re-model its app for India, since the end to end encryption is a default feature. WhatsApp would also have to keep a log of users’ chats for the traceability clause to take into effect, which would again, go against WhatsApp’s privacy policy. The traceability clause is not fool proof, and may end up violating human rights since innocent people, who might have forwarded the message out of concern or for verification purposes, might be subjected to the legal consequences of it.

In response, the Government has called WhatsApp’s act a clear case of defiance of the country’s laws, and said that the rules and regulations were introduced to curb the menace of fake news. Others have opined by relying on the Puttaswamy judgement and have brought up the exceptions clause in the judgement, which states that the right to privacy is subject to legality, necessity, and proportionality. The government has also questioned WhatsApp’s commitment to ensure privacy of the users, since it shares all information with its parent company- Facebook, for marketing and advertising purposes. In response to WhatsApp’s allegation that innocent people might be arrested, the Government has reassured that only the source or the originators of the text or post shall be traced, and not the subsequent senders.

Further, disclosure of information relating to offences relating to sovereignty, integrity and security of India, public order incitement to an offence relating to rape, sexually explicit material or child sexual abuse material punishable with imprisonment for not less than five years, was imperative in the eyes of the Government. The government, to support its introduction of the said rules, has also highlighted Google, another tech giant’s conformation with the said rules.

Essentially, it is a conflict between the Government’s aim of security and well being of the people, and protection of the right to privacy.

REFERENCES:

https://indianexpress.com/article/technology/tech-news-technology/whatsapp-vs-indian-government-over-new-social-media-rules-7-points-to-note-7332708/

https://www.reuters.com/world/india/exclusive-whatsapp-sues-india-govt-says-new-media-rules-mean-end-privacy-sources-2021-05-26/

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