Following the lawsuit filed by WhatsApp in the Delhi High Court against the government’s new digital rules, the Government of India has clarified that it respects the right to privacy and does not have any intention to violate it. The government also stated that WhatsApp’s last moment challenge to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect, even when they had sufficient time and opportunity available during the consultation process and after the rules were enacted.
The government stated that any operations being run in India are subject to the law of the land, and WhatsApp’s refusal to comply with the guidelines is a clear act of defiance of a measure whose intent can certainly not be doubted. It also added that WhatsApp is carving out an exception that messages on the platform are end-to-end encrypted. It is also pertinent to note that the rule to trace the first originator of the information is mandatory for each and every significant social media intermediary, irrespective of their method of operation.
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The Government of India further added the Intermediary Guidelines are not rules enacted in isolation but have global precedence. In July 2019, the governments of the United Kingdom, United States, Australia, New Zealand and Canada issued a communique, concluding that: “tech companies should include mechanisms in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can gain access to data in a readable and usable format.” And what India is asking for is significantly much less than what some of the other countries have demanded, the government said.
The Ministry of Electronics and Information Technology (MeitY) highlighted that the Rule 4(2) of the Intermediary Guidelines is not a measure in isolation. The rules were framed after consultation with various stakeholders and social media intermediaries, including but not limited to WhatsApp. Also, after October 2018, WhatsApp made no specific objection to the Government of India in writing relating to the requirement to trace the first originator in relation to serious offences. While WhatsApp had generally sought time to extend the time for enforcement of guidelines but did not make any formal reference that traceability is not possible.
Union IT Minister Ravi Shankar Prasad stated, “None of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact.” He further added that the Government of India is committed to ensuring the right to privacy for all its citizens, but at the same time it is also the responsibility of the government to maintain law and order and ensure national security.
MeitY also clarified that according to all established judicial dictum, no fundamental right, including the right to privacy, is absolute and it is subject to reasonable restrictions. The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction.
The government said, WhatsApp would only be required to disclose the origin of a particular message 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. Also, such information can only be sought as per a process sanctioned by the law thereby incorporating sufficient legal safeguards.