WhatsApp shutdown threat in India: 4 Reasons government says Whatsapp needs to 'follow' IT rules

Messaging service platform WhatsApp this week submitted before the Delhi High Court that if it is made or compelled to break encryption of messages, then the platform will stop functioning. The submissions came while the division bench led by the Acting Chief Justice was hearing the petitions moved by WhatsApp and Facebook challenging newly amended IT Rules .

Facebook and Whatsapp recently challenged the new rules on grounds that they violate the right to privacy and are unconstitutional.

"As a platform, we are saying, if we are told to break encryption, then WhatsApp goes," the lawyer who appeared for WhatsApp submitted. The company claims that the requirement was against the privacy of users and the rule was introduced without any consultation, WhatsApp said while opposing the amendment in IT Rules.

On February 25, the Centre framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, in the exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

The new guidelines issued by the government of India mandated a grievance redressal system for over the top (OTT) and digital portals in the country.

WhatsApp not legally entitled to claim that it protects users' privacy
The Centre told the Delhi High Court that WhatsApp and Facebook which monetizes users' information for business or commercial purposes are not legally entitled to claim that it protects privacy.

The Ministry of Electronics and Information Technology (MeitY's) through an affidavit opposed the petition of Whatsapp and Facebook challenging newly amended IT Rules, states that WhatsApp has already violated the fundamental rights of the users in India by denying them any dispute resolution rights in the country. The clauses of Dispute Resolution and the Governing Law are reproduced below to testify the same.

Tough for law enforcement agencies to trace fake messages as well as terrorists
Ministry has also told the Delhi High Court that if the IT Rules 2021 are not implemented, the law enforcement agencies will have difficulty in tracing the origin of fake messages and such messages will percolate in other platforms thereby disturbing peace and harmony in the society further leading to public order issues.

Social media platforms like Whatsapp and Facebook need to be accountable to users as well as law of the country they operate in

The affidavit further stated that MeitY's approach to the framing of legislation and rules is founded on the principles that the Internet should be open, safe trusted, Platforms should be accountable to users and no one should be allowed to take away the fundamental rights of Indian citizens guaranteed by the Constitution of India.

IT Rules in India are in line with global accepted norms
It added that the said statutory provision and the Rules are merely a manifestation of settled global jurisprudence developing around the secondary liability or responsibility of intermediaries in the changing dynamic of human interactions that World-wide-web and the platforms in the nature of "significant social media intermediaries" enable.

It is submitted that the principle of secondary liability or responsibility on part of significant social media intermediaries provides that despite the intermediary not being the creator of the problematic or illegal content, such significant social media intermediaries would have to abide by certain stipulations in case such problematic content breaches the stipulations of the law as it enables projecting or publicising or advertising the content.

(With agency inputs)