Defending the validity of the traceability clause embodied under Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the centre recently informed the Delhi High Court that the social media giant WhatsApp and its parent company Facebook could not challenge the constitutionality of any Indian law since they were foreign commercial entities.
The division bench led by Chief Justice DN Patel and Justice Jyoti Singh had sought response from the Ministry of Electronics and Information Technology (MeitY) upon a plea filed by WhatsApp LLC and Facebook Inc. challenging the “traceability” clause contained under Rule 4(2) of the IT Rules, insofar as it requires social media intermediaries to enable identification of the first originator of the information, on the ground that it breaches the privacy of its users.
In February this year, the centre had notified the IT rules which seeks to regulate all digital and intermediary platforms from publishing unlawful content. Rule 4(2) of the IT rules require social media intermediaries having more than 50 lakh registered users to “enable the identification of the first originator of the information on its computer resource” upon a court order, only on the limited ground that the content relates to commission of offences that attacks the sovereignty and integrity of India, or disturbs public order or friendly relations with foreign countries.
WhatsApp had contended that being a platform dedicated to creating a private and secure space where users could freely communicate through an end-to-end encrypted messaging and calling service, the new law mandating that it must assist in tracing the first originator of the information would cause the platform to break end-to-end encryption and privacy principles, thereby infringing upon the fundamental rights to privacy and freedom of speech of its users.
Relying on the decision of the apex court in KS Puttaswamy vs Union of India, (2017) 10 SCC 1, the plea claimed that the said rule violated the right to privacy of its users inasmuch as it eliminated the rights of hundreds of millions of Indians using WhatsApp to maintain the privacy of their messages, which is antithetical to end-to-end encryption and the core privacy principles underlying it.
The plea further alleged that the said rule imposes an unreasonable restriction on the right to freedom of speech and expression since the individuals will not feel safe to speak freely for fear that their lawful private communication will be used against them.
In addition, the plea contended that the said rule was violative of the parent act—Information Technology Act, 2000—as it compels social media intermediaries to fundamentally alter their platforms and is also “manifestly arbitrary” in violation of Article 14 to the extent that the legislature never intended to give authority to make such rules.
The plea read: “There is no law enacted by Parliament that expressly requires an intermediary to enable the identification of the first originator of information in India on its end-to-end encrypted platform or otherwise authorises the imposition of such a requirement through rule-making. While Impugned Rule 4(2) seeks to impose such a requirement, the Impugned Rule is not a valid law as it is subordinate legislation, passed by a Ministry and not Parliament.”
The centre, in its affidavit, vehemently challenged the maintainability of the instant petition on the ground that the social media platforms, which are out and out foreign commercial entities with no place of business in India, could not challenge the constitutionality of any Indian law. It also asserted that WhatsApp, which collects users’ personal information and shares it with Facebook and third party entities for commercial purposes, was not legally entitled to claim that it protects privacy.
The centre stated that the rule was absolutely in conformity with the parent legislation—Information Technology Act, 2000—and it had the legislative competence to make the instant rule by virtue of Section 87 of the Act. It further submitted that the rule was intended to curb the menace of fake news and offences committed against the State, or against women and children. The centre also claimed that the rules had been implemented for the purposes of “prevention, detection, investigation, prosecution or punishment of an offence 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.”
It further stated that social media intermediaries were expected to assist in preventing criminal activities happening on its platform, and in case of failure to do so, the platforms must rectify their architecture rather than expecting the change in legislation. “Mere discomfort/reluctance to comply with the requirement of modulating the technology for the purpose of enabling the statutory/legal requirement cannot be a basis for declaring a validly enacted legislation as ultra vires,” the affidavit read.
The affidavit further read: “The government is not seeking the platforms to break the encryption, but enable identify the first originator of the information by existing means or mechanisms or evolve a mechanism by which it can be identified…. The government expects the platforms to use a mechanism that guards the encryption and protects user’s privacy.”
Opposing the allegation that the said rule violated the right to privacy of citizens, the centre submitted that monitoring the content was completely outside the scope of the rule. “The rule does not touch upon the content of any user or even that of the first originator,” its affidavit claimed.
Raising concern over irresponsible content being circulated over social media, the apex court in a case initiated by itself on its own motion (also known as Prajwala case) had directed the centre to frame necessary guidelines or Standard Operating Procedure (SOP) to curb online sexual abuse.
Keeping in view the directions given by the apex court, the 2021 rules were created to combat the menace of misinformation and illegal content being circulated over the internet. The rules are merely a manifestation of settled global jurisprudence developing around the responsibility of intermediaries in the changing dynamics of human interactions that have been enabled by these platforms. The rules cast a corresponding responsibility on the intermediaries in the nature of due diligence and cooperation by directing the social media intermediaries to abide by certain stipulations and levying a penalty for failure to comply with the requirements.
—By Banshika Garg and India Legal News Service