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New Delhi: The Center has defended in the Delhi High Court the legal validity of its new IT rule that requires messaging apps like WhatsApp to trace the originator of information first, saying the law protects cyberspace and security from such entities. Gives the right to expect the counter to be created. Illegal content either by itself or by assisting law enforcement agencies.
The Center said Section 87 of the Information Technology Act has empowered it to frame Rule 4(2) of the Intermediary Rules – to enable the identification of an important social media intermediary to be the first originator of information in the legitimate state interest. makes it mandatory. Threats of fake news and crimes related to national security and public order as well as women and children.
In its affidavit filed in response to a challenge to the rule by WhatsApp, on the grounds that breaking encryption attacks the privacy of its users, the Center has claimed that the platforms monetize users’ information for commercial/business purposes, legally are not entitled to claim that it protects confidentiality.
The petitioners (WhatsApp and Facebook), being multi-billion dollar enterprises, claim any representative confidentiality, based on mining, owning and storing personal data of natural persons around the world and then monetizing it can not do. Natural persons using the platform, said the affidavit filed by the Ministry of Electronics and Information Technology.
WhatsApp collects users’ personal information and shares it with Facebook and third party entities for commercial/business purposes (WhatsApp’s 2016 Privacy Policy and its 2021 Updates). In fact, regulators in various countries hold that Facebook should be held accountable for its services and data management practices.
The Center said that ‘technical difficulties cannot be an excuse for refusing to comply with the law of the land and if a platform does not have the means to trace the originator first without breaking the encryption, then it is the platform which can be system should be developed. in great public duty.
The rule does not consider platforms breaking end-to-end encryption. The Terms only considers the Platform to provide the first Promoter’s details by any means or mechanism available with the Platform. The affidavit states that if the platform does not have such means, the platform should develop such a mechanism keeping in view the wide spread and great public duty.
The Center said that if the intermediary is not able to prevent or detect criminal activities taking place on its platform, then the problem lies in the architecture of the platform and the platform should reform its architecture and not expect changes in the law. Technical difficulties cannot be an excuse for refusing to comply with the law of the land.
In August, a bench headed by Chief Justice DN Patel had sought the Centre’s stand on the WhatsApp petition challenging the new rule on the grounds that it violates the right to privacy and is unconstitutional.
WhatsApp’s parent company Facebook has also challenged a similar rule.
WhatsApp had said in its petition that the need for traceability compelled it to break end-to-end encryption and thereby protect the privacy and free speech of the crores of citizens using its platform to communicate privately and securely. violated the fundamental rights of
In its response, the Center has said that WhatsApp’s plea cannot be entertained as a challenge to the constitutionality of any Indian law is not maintainable at the instance of a foreign commercial entity.
It further claimed that Rule 4(2) is an embodiment of the competitive rights of citizens of India and aims to protect the rights of vulnerable citizens within cyberspace who may or may be victims of cybercrime.
The Center said there are checks and balances to ensure that the rules are not misused or enforced in cases where other less intrusive means are effective in identifying the originator of the information.
The identity of the first originator only pertains to viral content relating to heinous crimes, as specified in the rule, and does not identify all users or citizens, it said.
The affidavit said that if the IT Rules 2021 are not implemented, law enforcement agencies will find it difficult to trace the origin of fake messages and such messages will spread to other platforms, thereby disturbing the peace and harmony in the society, thereby disrupting public order. Issues will come up.
The Center has also said that having a message on the platform as evidence in case of any legal proceedings, WhatsApp will lose the defense of ‘intermediary protection’, but that does not mean that WhatsApp will be held guilty and its officials be legally responsible.
Courts may include WhatsApp as a defendant and consider ‘contributory negligence’ and ‘retaliatory liability on WhatsApp and its officers’ (under section 85). Such liabilities will come to fruition only if such a case comes to the fore and WhatsApp is designated as an entity that it is sufficiently proved that it has contributed to the commission of the offence.
The Center also said that the Supreme Court itself has asked the central government to take all necessary steps to identify those who create and disseminate electronic information about certain offenses such as sexual abuse.
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