WhatsApp Is a Foreign Entity And Cannot Claim Rights In India: Centre

The Centre on October 21 told the Delhi High Court that WhatsApp had no right to challenge the constitutionality of Indian laws because it was an "out and out foreign commercial entity". The Centre pointed out that while WhatsApp monetised its users' private information by sharing the same with Facebook and other third parties, it could not claim privacy rights on behalf of the same users.

The Centre defended the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 stating that it was not arbitrary and was enacted to curb the menace of fake news, protect Indian citizens from offences against the state, and protect women and children from sexual offences.

The reply was filed by the Ministry of Electronics, Information and Technology (MeitY) in response to WhatsApp's plea challenging the constitutional validity of the IT Rules, 2021. Earlier this year in May, WhatsApp had challenged rule 4 (2) or the "traceability" clause in the IT Rules 2021 which requires significant social media intermediaries to provide for "identification of the first originator of the information".

WhatsApp challenged the provision of the IT Rules, 2021 suggesting that the rules would force the messaging platform to break its end to end encryption, the foundation on which it was built. It would have a chilling effect on its on dissenters and government critics while making lawyers apprehensive of sharing confidential information with their clients. WhatsApp said the IT Rules went beyond the scope of the parent act and claimed relief on behalf of its users' right to privacy and free speech.

Even as digital news platforms like The Wire, The News Minute, Quint, and LiveLaw have challenged provisions of the IT Rules in various high courts across the country, WhatsApp is the first major tech company to challenge the same.

Also Read: IT Rules Unconstitutional: WhatsApp Mounts Legal Challenge in Delhi HC

Foreign commercial companies like WhatsApp cannot claim constitutional rights

The Centre told the high court that Facebook-owned WhatsApp is an out and out foreign commercial entity that has no place of business in India and engages in the business of propagating information created on its platform by its users.

WhatsApp could not claim rights under Article 19 (free speech), 14 (equality) and 21 (liberty) which are available to Indian citizens only, the Centre added. WhatsApp could not even claim the right to privacy since it stemmed from Articles 19 and 21, the government told the high court.

The Centre relied on a Supreme Court ruling which held that even natural persons, who are foreigners, have limited expanse of rights in the country and cannot claim the same space as Indian citizens.

WhatsApp's predominant activity and purpose of incorporation is to engage in a commercial activity (which is the propagation of speech) which can be restricted on the ground of public purpose under restrictions to free speech, it added.

Also Read: Delhi HC Issues Notice on The Quint Challenge to 'Draconian' IT Rules

WhatsApp enterprise based on monetizing users' personal data; cannot claim privacy rights of users

The Centre argued that the doctrine of clean hands was well-settled jurisprudence. It contended that WhatsApp, which had built its multi-billion-dollar enterprise by monetising its users' personal information could not claim representative privacy rights on behalf of the natural persons using this platform.

The Centre told the high court that WhatsApp collected and shared its users' personal information with Facebook and third-party entities for business/commercial purposes. Hence, WhatsApp and Facebook were not legally entitled to claim that it was protecting their users' privacy. "In fact, the regulators of various countries clearly hold that Facebook should be fixed with accountability for its services and data management practices," the Centre added.

Also Read: WhatsApp's Privacy Policy: Data Protection Law Needed, Say Experts

WhatsApp was already violating Indian users' rights by denying them any dispute resolution in accordance with their terms and conditions policy.

In addition to this, WhatsApp's revised privacy policy—now on hold—but earlier mandatory for Indian users', allowed the messaging platform to share its users' personal data with Facebook which could be used for profiling. "Such profiling can be used for any activity which can harm the security of the nation, its sovereignty and integrity besides affecting individual privacy," the reply read.

The Indian government is interested in protecting its citizens' fundamental rights including their right to privacy. MeitY, a government entity, was duty-bound to frame regulations to protect the same, the affidavit further read.

Also Read: WhatsApp Violates Law On 5 Counts, Stay New Privacy Policy: Centre to HC

Discomfort to tweak technology cannot be the basis for declaring legislation invalid

The government said it was the platform's duty to evolve its mechanism to comply with local laws to control/regulate cyberspace. If current technology does not allow identification of the first originator, then WhatsApp must find a solution that can enable the same. "It is submitted that reasons of 'technical difficulties' cannot be an excuse to refuse compliance to the law of the land," the Centre's affidavit read.

"It is submitted that if the intermediary is not able to prevent or detect the criminal activities happening on its platform, then the problem lies in the platform's architecture," the Centre said asking that in such a case there cannot be a change of legislation.

The provision applies the least intrusive means for the purpose of identifying the originator of the info and is to be availed if all other options fail.

Also Read: WhatsApp's Privacy Policy: SC Issues Notice To Facebook, Centre

IT Rules do not propose breaking end-to-end encryption

WhatsApp's contention that IT Rules 2021 would result in breaking its end-to-end encryption is completely incorrect, the Centre said.

The available technology enables WhatsApp to identify the first originator of information circulating on its platform without breaking the encryption of the monitored message or other messages on the platform, it added.

Social media intermediaries (SMI) assist and enable in exchange and publication of ideas and information between persons by providing a platform accessible to all at an enormous scale and speed which has been unforeseen in human history, the Centre pointed out. Adding that this was a reason they should abide by regulations despite not creating their own content.

Also Read: WhatsApp Delays New Privacy Policy To May 2021 After Backlash