WhatsApp moves HC saying rules violate privacy; Centre says otherwise

New Delhi: WhatsApp has challenged in the Delhi High Court the new IT rules for social media intermediaries requiring the messaging app to trace chats and make provisions to identify the first originator of information, saying they violate the right to privacy and are unconstitutional.

The Facebook owned company further said the requirement of intermediaries enabling the identification of the first originator of information in India upon government or court order puts end-to-end encryption and its benefits "at risk". WhatsApp LLC, in its 224-page petition, urged the high court to declare Rule 4(2) of the Intermediary Rules as unconstitutional, ultra vires to the IT Act and illegal.

However, the government on Wednesday staunchly defended its new digital rules, saying the requirement of messaging platforms to disclose origin of flagged messages does not violate privacy, and went on to seek a compliance report from large social media firms.

IT Minister Ravi Shankar Prasad said the new norms will not impact normal functioning of the popular free-messaging platform.

The requirement of tracing origin of messages under new IT rules is for prevention and investigation of "very serious offences" related to sovereignty and integrity of India and security of the state, a statement from his ministry said.

Separately, the ministry asked all significant social media companies such as Facebook, Twitter, YouTube, Instagram and WhatsApp to report their status on compliance with the new rules, which kicked in from Wednesday.

The companies did not respond to emailed queries on the issue.

The new rules, announced on February 25, require large social media platforms -- defined as those with over 50 lakh users in the country -- to follow additional due diligence, including appointment of chief compliance officer, nodal contact person and resident grievance officer.

Non-compliance with rules would

result in these platforms losing their intermediary status that provides them immunity from liabilities over any third-party data hosted by them. In other words, they could be liable for criminal action in case of complaints.

Sources with knowledge of the matter said large social media companies have been asked to immediately provide details and contact information of the three officials mandated under the new rules.

The ministry in the statement termed WhatsApp's last moment challenge to the IT rules as an unfortunate attempt to prevent the norms from coming into effect.

The UK, the US, Australia, New Zealand and Canada require social media firms to allow for legal interception, it said, adding "What India is asking for is significantly much less than what some of the other countries have demanded".

"Therefore, WhatsApp's attempt to portray the Intermediary Guidelines of India as contrary to the right to privacy is misguided," the official statement said, adding that the government recognises that 'Right to Privacy' is a fundamental right.

The Centre's strong response comes after WhatsApp filed a lawsuit in the Delhi High Court challenging the new digital rules, arguing that the requirement to provide access to encrypted messages will break privacy protections. It also sought that no criminal liability be imposed on it for any alleged non-compliance with Rule 4(2) which requires to enable the identification of the first originator of information.

In the note to the social media companies, the ministry has asked these large digital entities about their compliance status and directed them to revert with their response at the earliest "and preferably today itself".

Meanwhile, the official statement said that information on the originator of the message can only be sought as per a process sanctioned by the law, thereby incorporating sufficient legal safeguards.

Tracing the origin of flagged messages would be the last resort, "only in scenarios where other remedies have proven to be ineffective".

It emphasised that detection and punishment of the person who started the mischief leading to a serious crime is in public interest and therefore, the role of the originator is very important.

Prasad said it is WhatsApp's responsibility to find a technical solution, whether through encryption or otherwise.