WhatsApp moves Delhi High Court against India’s new IT Rules
Recently, messaging platform WhatsApp has moved the Delhi High Court to challenge the traceability provision in the New IT Rules 2021.
- Traceability Provision:
- It requires intermediaries to enable identification of the first originator of information on their platforms.
- Rule 4(2) of the Intermediary Rules 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 passed by a competent authority under the Information and Technology (IT) Act 2000.
- Failure to comply with this requirement would take away the indemnity provided to social media intermediaries under Section 79 of the IT Act.
Infringes Rights to privacy and freedom of speech:
- This breaks end-to-end encryption and impermissibly infringes upon users’ fundamental Rights to privacy and Freedom of speech.
- Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression.
- The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution (Puttaswamy Judgement 2017).
- Discourages Free Expression:
- Freedom of Speech and Right to Privacy encourages users to express their ideas and opinions, report unlawful activities, and challenge popular views without fear of reprisal,
- whereas enabling the identification of the first originator of information in India subverts privacy and discourages free expression of views.
- Will Curb Freedom of Media:
- It would put journalists at risk of retaliation for investigating issues that may be unpopular, civil or for discussing certain rights and criticizing or advocating for politicians or policies.
- Clients and attorneys who could become reluctant to share confidential information for fear that the privacy and security of their communications are no longer ensured.
- Traceability not Effective in Finding Originator:
- Traceability would not be effective in finding the originator of a particular message because people commonly see content on websites or social media platforms and then copy and paste them into chats.
- It would also be impossible to understand the context of how it was originally shared.
Thus, balancing state and individual security along with privacy of citizen need streamline with early enactment of data protection law in India