WhatsApp, Facebook Monetise Users’ Data, Can’t Claim Privacy Protection on Their Behalf, Says Government


The Center has defended in the Delhi High Court the legal validity of its new IT rule that requires messaging apps like WhatsApp to “trace” the first originator of information, saying the law is safe from such entities. Gives the right to expect the creation of cyberspace. and counter illegal content either on your own or by assisting law enforcement agencies.

The Center said that Section 87 of the Information Technology Act has empowered it to make Rule 4(2) arbitration rules – which enables the identification of the first originator of information in the “lawful state interest” to prevent the threat of fake news and crimes to national security and public order, as well as to women and children, as well as to an important social media mediator makes it mandatory.

In its affidavit filed in response to a challenge to the rule by WhatsApp, on the grounds that breaching the encryption invades the privacy of its users, the Center has claimed that the platform is legal to “monetize users’ information for commercial/commercial purposes”. are not entitled to claim that it protects privacy”.

“Petitioner (WhatsApp And Facebook), being a multi-billion dollar enterprise, based on mining, owning and storing personal data of natural persons worldwide and then monetizing it, on behalf of any natural persons using the Platform. Also the representative cannot claim the right to privacy. , stated in the affidavit filed by Ministry of Electronics and Information Technology.

“WhatsApp collects users’ personal information and shares it with Facebook and third party entities for commercial/business purposes (WhatsApp’s 2016 Privacy Policy and its 2021 Update). In fact, regulators in various countries are of the view that Facebook should be held accountable for its services and data management practices,” it added.

The Center said technical difficulties cannot be an excuse for refusing to comply with the law of the land and if a platform does not have the means to trace the “first originator” without breaking the encryption, then it is the platform that can be “Should develop” such a mechanism “into great public duty.

“The rule does not consider platforms breaking end-to-end encryption. The Terms only considers the Platform to provide the first Promoter’s details by any means or mechanism available with the Platform. If the platform does not have such means, then the platform should develop such a mechanism in view of the wide spread and great public duty,” the affidavit said.

The Center said, “If the intermediary is not able to prevent or detect criminal activities taking place on its platform, then the problem lies in the architecture of the platform and the platform should reform its architecture and not expect changes in the law. The reasons for ‘technical difficulties’ cannot be an excuse for refusing to comply with the law of the land.”

In August, a bench headed by Chief Justice DN Patel had sought the Centre’s stand on the WhatsApp petition challenging the new rule on the grounds that it violates the right to privacy and is unconstitutional.
WhatsApp’s parent company Facebook has also challenged a similar rule.

in your argument, WhatsApp had said that the need for traceability forced it to “break end-to-end encryption” and thereby protect the privacy and free speech of the millions of citizens using its platform to communicate privately and securely. violated the fundamental rights of

In its reply, the Center has said that WhatsApp’s petition cannot be maintained as the challenge to the constitutionality of any Indian law cannot be sustained at the instance of a foreign commercial entity.

It further claimed that Rule 4(2) is “the embodiment of the competitive rights of citizens of India” and is intended to “protect the rights of vulnerable citizens within cyberspace who may or may have been victims of cybercrime”.

The Center said there are checks and balances to ensure that the rules are not misused or enforced in cases where other less intrusive means are effective in identifying the originator of the information.

The identity of the first originator pertains only to viral content relating to heinous crimes, as specified in the rule, and does not identify all users or citizens, it said.

“if IT Rules 2021 The affidavit said that law enforcement agencies would find it difficult to trace the origin of the fake messages and such messages would spread to other platforms, thereby disturbing the peace and harmony in the society, leading to public order issues.

The Center has also said that having any message on the platform as evidence in case of any legal proceedings, WhatsApp will lose the defense of ‘intermediary protection’, but this does not mean that WhatsApp will be blamed and its officials. be legally responsible. “

“Courts may include WhatsApp as a defendant and consider ‘contributory negligence’ and ‘retaliatory liability on WhatsApp and its officers’ (under section 85). Such liability shall accrue only if such The matter will come to the fore and WhatsApp has been designated as an entity that it is sufficiently proved that it has contributed to the commission of the offence,” it added.

The Center also said that the Supreme Court itself had asked the central government to “take all necessary steps to identify persons who create and disseminate electronic information” about certain offenses such as sexual abuse.