Whatsapp and Facebook do not have legal right to claim privacy: Center tells Delhi HC

The Center told Delhi High Court on Friday that WhatsApp and Facebook “which monetize users’ personal information” for commercial purposes do not have a legal right to claim that they are protecting privacy and that the platform instant messenger must create a mechanism to identify illegal information. origin and sender without compromising end-to-end encryption.

The observation was made in a reply filed in response to WhatsApp’s petition challenging 2021 IT rules’ the requirement to allow the traceability of online messages.

The government has said that the WhatsApp petition is not sustainable because the company is a foreign entity and it cannot claim rights under Article 21, including the right to privacy.

“The IT rules are developed on the basis of numerous parliamentary and judicial recommendations which aimed to protect users against child pornography, fake news and other harmful online content which was considered to exceed the limits of freedom of expression”, the ministry said. of Electronics & IT told the court.

The government has said that rule 4 (2) does not oblige or the state seeks to break WhatsApp’s encryption, but “the claim that there is a difficulty in changing the architecture” of the important social media intermediary cannot be grounds for judicial review.

“The government expects the platforms themselves to prevent illegal content online or help law enforcement identify the perpetrator of such illegal content,” the response said.

The Facebook-owned company said in its petition that requiring intermediaries to allow the identification of the first sender of information on their platforms could expose journalists and activists to retaliation in India and also violate fundamental rights. people to freedom of speech and expression. .

The government said it was up to WhatsApp to create a mechanism to identify the first sender without disrupting the encryption. Any order under the rule may only be made for the purposes of preventing, detecting, investigating, prosecuting or punishing an offense relating to “the sovereignty and integrity of India, the state security, friendly relations with foreign states or public order, or incitement to such an offense and in relation to rape, sexually explicit material or child pornography, he said.

“If the government can identify the first perpetrator by any other means, then the order will not be passed under the rule,” the response reads later.

In the response, the government also raised questions about WhatsApp’s privacy policy and said that when users’ personal data is shared with Facebook, it can be used for profiling.

“Such profiling is also politically and religiously possible and can be used for any activity that may harm the nation’s security, sovereignty and integrity, in addition to affecting the privacy of individuals,” said he declared.

Rule 4 (2) of the Intermediate Rules, which WhatsApp wants to repeal, states that “a major social media intermediary providing services primarily in the form of messaging must allow the identification of the first sender of information on its IT resource, according to this which may be required ”by a court order or an order made by a competent authority under the law on information technology.

WhatsApp has argued that there is no way to predict which message will be subject to such a trace order. “Therefore, the (WhatsApp) petitioner would be forced to forever create the ability to identify the first sender for every message sent to India on their platform at the request of the government. This breaks end-to-end encryption and the privacy principles that underpin it, and impermissibly violates users’ fundamental rights to privacy and freedom of expression, ”he said.

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