Information Technology Minister Ravi Shankar Prasad on Wednesday took WhatsApp to task, saying the social media giant was trying to function outside the law of the land and avoid rules that had been framed in public interest and to ensure national security.
He also pointed out that India’s rules have a precedence in leading democracies like the, USA, UK, Canada and Australia and were in fact less stringent, WhatsApp was making every effort to refuse the enactment of the Intermediary Guidelines which are necessary to uphold law and order and curb the menace of fake news, he added.
“WhatsApp’s challenge, at the very last moment, and despite having sufficient time and opportunity available during the consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect,” the minister said. He was referring to the social media giant filing a petition in the Delhi High Court on the very day that the new rules were scheduled to come into effect.
“Any operations being run in India are subject to the law of the land. WhatsApp’s refusal to comply with the guidelines is a clear act of defiance of a measure whose intent can certainly not be doubted as it is in public interest,” the minister said.
Committed to right to privacy, but need to maintain law & order: IT Minister Ravi Shankar Prasad
International Precedence
The minister pointed out that rules enacted by the Government of India in public interest 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.”
Brazilian law enforcement is looking for WhatsApp to provide suspects' IP addresses, customer information, geo-location data and physical messages.’
What India is asking for is significantly much less than what some of the other countries have demanded.
Therefore, WhatsApp’s attempt to portray the Intermediary Guidelines of India as contrary to the right to privacy is misguided.
Double standards by WhatsApp?
At one end, WhatsApp seeks to mandate a privacy policy wherein it will share the data of all its users with its parent company, Facebook, for marketing and advertising purposes. On the other hand, WhatsApp makes every effort to refuse the enactment of the Intermediary Guidelines which are necessary to uphold law and order and curb the menace of fake news. WhatsApp defends its refusal to enact the Intermediary Guidelines by carving out an exception that messages on the platform are end to end encrypted, Prasads said.
It is pertinent to note that the rule to trace the first originator of information is mandatory for each and every significant social media intermediary, irrespective of their method of operation.
Minister Shri Ravi Shankar Prasad said that “the entire debate on whether encryption would be maintained or not is misplaced. Whether Right to Privacy is ensured through using encryption technology or some other technology is entirely the purview of the social media intermediary.
Rule is in Abiding Public Interest
The order, to trace first originator, under Rule 4(2) of the new guidelines shall be passed only for the purposes of prevention, investigation, punishment etc. of inter alia an offence relating to sovereignty, integrity and security of India, public order incitement to an offence relating to rape, sexually explicit material or child sexual abuse material punishable with imprisonment for not less than five years.
It is in public interest that who started the mischief leading to such crime must be detected and punished. We cannot deny as to how in cases of mob lynching and riots etc. repeated WhatsApp messages are circulated and recirculated whose content are already in public domain. Hence the role of who originated is very important.
He said the Government of India is committed to ensuring Right of Privacy to all its citizens as well as having the means and the information necessary to ensure public order and maintain national security. It is WhatsApp’s responsibility to find a technical solution, whether through encryption or otherwise, that both happen,” the minister said.
As a significant social media intermediary, WhatsApp seeks a safe harbour protection as per the provisions of the Information Technology Act. However, in a befuddling act, they seek to avoid responsibility and refuse to enact the very steps which permit them a safe harbour provision, he pointed out.
Prasad also stated that “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”
As per all established judicial dictum, no Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions. He pointed out that information can only be sought by government agencies as per a process sanctioned by the law thereby incorporating sufficient legal safeguards.
