WhatsApp, a messaging service informed the Delhi High Court this week that if it is forced to decrypt messages, the platform would cease operations. The statement was made during a hearing on petitions filed by WhatsApp and Facebook against the newly amended IT Rules, with the division bench led by the Acting Chief Justice overseeing the proceedings. Facebook and WhatsApp have contested the new regulations, asserting that they infringe upon the right to privacy and are unconstitutional.
“As a platform, we are saying, if we are told to break encryption, then WhatsApp goes,” the lawyer who appeared for WhatsApp submitted. Opposing the amendment in IT Rules, WhatsApp argued that the requirement was detrimental to user privacy and was implemented without any prior consultation.
On February 25, the Indian government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, utilizing authority under section 87 (2) of the Information Technology Act, 2000, thereby replacing the prior Information Technology (Intermediary Guidelines) Rules 2011. These new regulations mandated the establishment of a grievance redressal system for over the top (OTT) and digital platforms operating in the country.
The Centre informed the Delhi High Court that WhatsApp and Facebook, which monetize users’ information for business or commercial purposes, lack legal standing to assert that they protect privacy. The Ministry of Electronics and Information Technology (MeitY), in an affidavit opposing WhatsApp and Facebook’s petition challenging the newly amended IT Rules, stated that WhatsApp has already infringed upon the fundamental rights of users in India by denying them any recourse for dispute resolution within the country. The clauses regarding Dispute Resolution and the Governing Law are provided below to support this assertion.
The Ministry also informed the Delhi High Court that without the implementation of the IT Rules 2021, law enforcement agencies would encounter difficulties in tracing the source of fake messages. Consequently, these messages may proliferate across other platforms, exacerbating societal unrest and potentially resulting in public order disruptions.
The affidavit additionally affirmed that the Ministry of Electronics and Information Technology’s (MeitY) approach to crafting legislation and regulations is grounded in the principles that the Internet should remain open, safe, and trustworthy. It emphasizes that platforms should be answerable to their users and underscores that no entity should be permitted to infringe upon the fundamental rights of Indian citizens as guaranteed by the Constitution of India.
It further emphasized that the mentioned statutory provision and Rules simply reflect established global jurisprudence regarding the secondary liability or responsibility of intermediaries in the evolving landscape of human interactions facilitated by the worldwide web and platforms resembling “significant social media intermediaries.”
The principle of secondary liability or responsibility mandates that even if the intermediary did not create the problematic or illegal content, significant social media intermediaries must adhere to specific provisions if such content violates legal stipulations, given their role in disseminating, publicizing, or advertising the content.