India said WhatsApp’s refusal to comply with the new IT Rules is a clear “act of defiance” and made it clear that any company having an operation in the country is subject to the law of the land.
The government said that the rule to trace the first originator of information is mandatory for each and every significant social media intermediary operating in the country.
The government’s response came quickly after Facebook-owned WhatsApp filed a case against the new Indian IT Rules that come into effect from Wednesday. The new rules now require companies like WhatsApp to trace the origin of particular messages sent on the service.
After filing the case in the Delhi High Court on 25 May, WhatsApp told Indian media that “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 undermines people’s right to privacy.”
Civil society and experts have also opposed requirements under the new rules saying that it would violate the privacy of WhatsApp users.
WhatsApp has more than 400 million users in India, which is the app’s biggest market globally. India recently alleged that the messaging platform is misusing its dominant position in the market.
Responding to WhatsApp’s allegations, India’s telecom and IT minister Ravi Shankar Prasad said that “none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact.”
“As per all established judicial dictum, no Fundamental Right, including the Right to Privacy, is absolute, and it is subject to reasonable restrictions. The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction,” Prasad said in a statement.
Prasad said that the country is committed to ensuring the right of privacy to all its citizens, but no “Fundamental Right”, including the right to privacy, is absolute and is subject to reasonable restrictions.
“…the Government of India is committed to ensure the Right of Privacy to all its citizens, but at the same time it is also the responsibility of the government to maintain law and order and ensure national security,” he added.
As per the Intermediary Guidelines, the minister added that the originator of information could only be traced in a scenario where other remedies have proven to be ineffective, making the same a last resort measure. “Moreover, such information can only be sought as per a process sanctioned by the law thereby incorporating sufficient legal safeguards.”
The government said that rule 4(2) of the Intermediary Guidelines is not a measure in isolation and has been framed after consultation with various stakeholders and social media intermediaries, including but not limited to WhatsApp.
It alleged that the Facebook-owned messaging app never made any objection after October 2018 in writing relating to the requirement to trace the first originator in relation to serious offences. WhatsApp sought to extend the time to enforce the guidelines but did not make any formal reference that traceability is not possible, the government said.
“WhatsApp’s challenge, at the very last moment, and despite having sufficient time and opportunity available during the consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect,” Prasad said.
The minister also took a dig at WhatsApp’s new user data policy, which will allow it to share data with its parent company, Facebook.
“At one end, WhatsApp seeks to mandate a privacy policy wherein it will share the data of all its users with its parent company, Facebook, for marketing and advertising purposes. On the other hand, WhatsApp makes every effort to refuse the enactment of the Intermediary Guidelines, which are necessary to uphold law and order and curb the menace of fake news,” Prasad commented.
“…the entire debate on whether encryption would be maintained or not is misplaced. Whether Right to Privacy is ensured through using encryption technology or some other technology is entirely the purview of the social media intermediary,” he further added.
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