India’s Supreme Court informs government in WhatsApp challenge to new technology rules – JURIST – News
The Delhi Supreme Court on Friday issued a notice to the Indian central government seeking a response to WhatsApp’s challenge to the new information technology rules created by the government in February 2021. Tech companies have challenged the constitutionality of Rule 4 (2) and related provisions that require social media intermediaries to identify the primary originator of information shared on their platforms upon request from government agencies.
WhatsApp first filed its petition in the Supreme Court in May, arguing that tracing the first sender would violate end-to-end encryption and force private companies to collect and store data for billions of messages from their users every day . This requirement does not meet the triple test of legality, necessity and proportionality set out by the Supreme Court in KS Puttaswamy versus Indian Union. Doing so would consequently violate their right to privacy, which is a fundamental right under Article 21 of the Indian Constitution.
WhatsApp also claimed that breaking end-to-end encryption would have a deterrent effect on freedom of expression, even in people’s private lives, since “innocent people could be investigated or even jailed for later content share”. becomes problematic in the eyes of a government, even if by sharing it did not mean any harm at all. ”Public figures such as journalists, civic and political activists, government critics, whistleblowers etc. would be particularly at risk.
Although the Government of India has not yet taken its response to court, it has responded in a press release that the right to privacy and freedom of expression are subject to reasonable restrictions under the Constitution. It also found that the rules are appropriate and necessary to protect the public interest and uphold law and order.
Over the years, India has seen an increase in cases of mob lynching and rioting due to the spread of fake news on social media. Investigative agencies, and sometimes even courts, have often enlisted the help of social media intermediaries to trace the source of “provocative and nefarious” online news that has caused violence and crime. However, these intermediaries have been reluctant due to privacy concerns of their users. This challenge to the IT rules can be the way to a middle ground. The next hearing on this matter will take place on October 22nd.