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Home >News >India >WhatsApp  case  in Delhi HC first big test of privacy law

NEW DELHI : Facebook Inc.’s WhatsApp messaging unit filed a lawsuit in the Delhi high court to quash new government rules that require social media intermediaries to trace users’ encrypted messages in a test for right to privacy in India.

In its petition, WhatsApp said the rules that came into effect on Wednesday were a “dangerous invasion of privacy" and pose a threat to free speech. The petition claimed that enforcement of Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) will break WhatsApp’s encryption that ensures messages can only be read by the sender and receiver and the privacy principles underlying it.

Rule 4(2) makes it mandatory for social media intermediaries to trace the originator of a message or post on their platform if required by a court or a competent authority under Section 69A of the IT Act. While the rules clarify that such an order may only be passed for serious criminal offences, some categories under which authorities can seek data such as ‘public order’ can be interpreted broadly, posing a threat to free speech and the right to privacy.

Although the company has some valid arguments against the intermediary rules, the government, too, has a few rulings that it can cite to defend itself, lawyers said.

“The Puttaswamy judgement itself defines some exceptions to the right to privacy, and this is perhaps the first time that these exceptions will truly be tested," said one of the lawyers. “As long as the government can prove that it (the new Intermediary Rules) does fall under the parameters described in the judgement, and the sitting judges for the case agree, it will fly for the government," the lawyer added.

The Puttaswamy judgement was a landmark ruling passed by the Supreme Court in 2017, which said a person’s right to privacy must be preserved except in cases where legality, necessity, and proportionality are all weighed against it. WhatsApp contends that the traceability requirements violate users’ privacy and is against the Puttaswamy judgement.

“Given that the judgement itself carves out exceptions against this broad spectrum of privacy, they would, as well, come into play when deciding the case. We cannot ignore the concerns of the government about national security, but how sustainable the grounds of either party prove to be, it is only for the Hon’ble Court to adjudicate upon," said Siddharth Jain, co-founding partner, PSL Advocates & Solicitors.

Another lawyer said WhatsApp will have to prove that the rules enforced by the government are beyond the “limited exceptions" carved out by the Puttaswamy judgement. “It’ll be interesting to see how a deeper level test can be developed from this decision," the person noted.

“The state’s security interests and crime prevention are genuine grounds to seek information. However, such interventions by the state must satisfy tests of proportionality and identified legitimate thresholds, else such invasive tools will turn out to be potential weapons, infringing the privacy of individuals," said Rishi Anand, partner, DSK Legal.

The second unidentified lawyer said an argument could be made that the rules allow the government “wide powers" to seek data from platforms, which is inconsistent with the individual’s right to privacy. “The intermediary guidelines are very clear that if the government wants data, it just needs to ask the intermediary, and they will have to provide it. But the data actually belongs to individuals; it’s not owned by intermediaries. How can the government ask for that without consent? That’s the logic," he said.

WhatsApp’s argument that tracing the first originator of messages will require the platform to trace every message sent by every user is also a powerful point. The second person said this is a violation of provisions in the Constitution, which should be clear to “any impartial court". “The problem is that the government came out with these broad guidelines. That’s not necessarily consistent with the Constitution," the person noted.

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