Centre Defends New IT Rules, Urges Delhi HC to Dismiss Fresh Pleas of Facebook, WhatsApp

The Centre further said that WhatsApp's new privacy policy which allows sharing of information with Facebook can harm national security, harmony and sovereignty.

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New Delhi: The Central government on Friday filed a fresh affidavit in Delhi High Court against WhatsApp opposing the pleas by Facebook challenging the new IT rules for social media intermediaries. The Centre urged the court to dismiss the pleas and said they were not maintainable.

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Furthermore, the Centre told the high court that WhatsApp is a foreign commercial entity and its plea challenging the constitutionality of any Indian law is hence not maintainable. The Centre in the plea said WhatsApp doesn't have a place of business in India and is engaged in the business of propagating information created by its users.

The Centre further said that WhatsApp's new privacy policy which allows sharing of information with Facebook can harm national security, harmony and sovereignty.

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Defending the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and its section allowing interception of messages, the Centre said the same is necessary to prevent floating of information regarding rape crimes on the internet.

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The Centre said the law empowers it to expect such entities to create safe cyberspace and counter illegal content either themselves or by assisting the law enforcement agencies.

In its affidavit filed in response to WhatsApp's challenge to the rule on the ground that breaking the encryption invades its users' privacy, the Centre has claimed that platforms monetize users' information for business/ commercial purposes are not legally entitled to claim that it protects privacy .

The Centre also added that the petitioners (WhatsApp and Facebook), being multi-billion dollar enterprises, almost singularly on the basis of mining, owning and storing the private data of natural persons across the world and thereafter monetizing the same, cannot claim any representative privacy right on behalf of the natural persons using the platform.

It said WhatsApp collects users' personal information and shares it with Facebook and third-party entities for business/commercial purposes (WhatsApp's privacy policy of 2016 and its 2021 update). "In fact, the regulators of various countries dearly hold that Facebook should be fixed with accountability for its services and data management practices," it added.

The fresh plea further stated that Rule does not contemplate the platforms breaking the end-to-end encryption. The Rule only contemplates the platform to provide the details of the first originator by any means or mechanism available with the platform.

The Centre said if the intermediary is not able to prevent or detect the criminal activities happening on its platform, then the problem lies in the platform's architecture and the platform must rectify their architecture and not expect the change of legislation. Reasons regarding 'technical difficulties' cannot be an excuse to refuse compliance to the law of the land.

The development comes as a bench headed by Chief Justice DN Patel had in August sought the Centre's stand on WhatsApp petition challenging new rule on the ground it violates the right to privacy and is unconstitutional.

On the other hand, WhatsApp said in the plea that the traceability requirement forced it break end-to-end encryption and thus infringe upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using its platform to communicate privately and securely.

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Published Date:October 22, 2021 11:20 PM IST

Updated Date:October 22, 2021 11:21 PM IST

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