This Article is From May 26, 2021

Right To Privacy Not Absolute, Says Government On WhatsApp's Lawsuit

WhatsApp filed its petition on Tuesday against the rules that will require it to "trace" the origin of messages sent on the service.

WhatsApp filed a lawsuit against new digital rules over violation of user privacy (Representational)

New Delhi:

Responding to WhatsApp's lawsuit challenging new digital rules on grounds of violation of user privacy, the government said today it is committed to the right to privacy of citizens but it is subject to "reasonable restrictions" and "no fundamental right is absolute".

The IT Ministry also doubled down on the rules, writing to all significant social media platforms asking for details of their compliance. "Please confirm and share your response ASAP and preferably today itself," said the note.

Rebutting WhatsApp's arguments, Union IT Minister Ravi Shankar Prasad said: "The government of India is committed to ensuring right to privacy to all its citizens as well as having the means and the information necessary to ensure public order and maintain national security. It is WhatsApp's responsibility to find a technical solution, whether through encryption or otherwise, that both happen."

But he asserted that "no fundamental right, including the right to privacy, is absolute and it is subject to reasonable restrictions," and calling for details of the "first originator of information" was an example of such a "reasonable restriction"

Mr Prasad insisted WhatsApp's normal functioning or its users would not be impacted in any way. WhatsApp, he said, would be required to disclose the origin of a message only if it is "for prevention, investigation or punishment of very serious offences related to the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material".

WhatsApp filed its petition in the Delhi High Court on Tuesday against the rules that will require it to "trace" the origin of messages. It argues that messages on its platform are end-to-end encrypted, so to comply with the law it would have to break encryption for those who send and receive messages.

"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 undermine people's right to privacy," WhatsApp, which has nearly 400 million users in India, says.

"We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us," said a spokesperson of the California-based Facebook unit.

Mr Prasad said the originator of information can only be traced "as a last resort" in a scenario where other remedies have proven to be ineffective, and there are sufficient legal safeguards.

"It is in public interest that who started the mischief leading to such crime must be detected and punished. We cannot deny as to how in cases of mob lynching and riots etc. repeated WhatsApp messages are circulated and recirculated whose content are already in public domain. Hence the role of who originated is very important," the Minister asserted.

The government also said WhatsApp had made no specific objection to traceability earlier. Citing other countries, it said India was asking for "significantly much less".

Platforms like Facebook, WhatsApp and Twitter were given three months to comply with the new rules that require them to appoint a compliance officer in India, set up a grievance response mechanism and take down content within 36 hours of a legal order.

Mr Prasad said WhatsApp's case was an attempt to block the rules on the day they are to take effect.

The Intermediary Guidelines and Digital Media Ethics Code says "significant social media intermediaries" or sites that host third party information, messages and posts stand to lose protection from lawsuits and prosecution if they fail to comply.

This means that big tech companies can no longer be just intermediaries, which gave them legal immunity from objectionable content posted by users. They will be treated as any other publishing platform and can face action.

Facebook and Google have said they will ensure compliance. Facebook says it wants to discuss some "issues which need more engagement".

Twitter is yet to comment; it is caught in the "Congress toolkit" tweet controversy and finds itself on the radar of the government and Delhi Police for marking a BJP leader's post as "manipulated media".