WhatsApp, Facebook monetise users' information, not legally entitled to privacy protection claim, Centre tells Delhi HC

New Delhi [India], October 22 : The Centre told the Delhi High Court on Friday that WhatsApp and Facebook that monetise users' information for business/commercial purposes are not legally entitled to claim that they protect privacy. In fact, the regulators of various countries clearly hold that Facebook should be held accountable for its services and data management practices.
Ministry of Electronics and Information Technology (MeitY's) through an affidavit opposed the petition of Whatsapp and Facebook challenging newly amended IT Rules, stating that WhatsApp has already violated the fundamental rights of the users in India by denying them any dispute resolution rights in the country.
Facebook and Whatsapp have recently challenged the new IT rules on the grounds that they violate the right to privacy and are unconstitutional. The Delhi HC had asked the Centre to reply to pleas challenging the new IT rules for social media intermediaries requiring the messaging app to "trace" chats and make provisions to identify the first originator of the information.
The Ministry has also told the Delhi High Court on Friday that if the IT Rules 2021 are not implemented, the law enforcement agencies will have difficulty in tracing the origin of fake messages and such messages will percolate in other platforms thereby disturbing peace and harmony in the society further leading to public order issues.
Affidavit further states that, the MeitY's approach to the framing of legislation and rules are founded on the following principles: (1) Internet should be open, safe and trusted (2) Platforms should be accountable to the users and (3) No one will be allowed to take away the fundamental rights of Indian citizens guaranteed by the Constitution of India.
It added that the said statutory provision and the Rules are merely a manifestation of settled global jurisprudence developing around the secondary liability or responsibility of intermediaries in the changing dynamic of human interactions that worldwide web and the platforms in the nature of "significant social media intermediaries" enable.
It also submitted that significant social media intermediaries assist and enable the exchange and publication of ideas and information between persons by providing a platform accessible to all at an enormous scale and speed, which has been unforeseen in human history. It is submitted that the principle of secondary liability or responsibility on part of significant social media intermediaries provides that despite the intermediary not being the creator of the problematic/illegal content, such significant social media intermediaries would have to abide by certain stipulations in case such problematic content breaches the stipulations of the law as it enables projecting/publicising/ advertising the content.
It is submitted that platform that is provided by the significant social media intermediaries, casts a corresponding responsibility on the same in the nature of due diligence and co-operation in case of the legislatively demarcated fields.
Earlier, WhatsApp through its statement had said "Requiring messaging apps to 'trace' chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermine people's right to privacy."
WhatsApp spokesperson had said, "We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us."
On February 25, the Centre framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, in the exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
The new guidelines issued by the government of India mandated a grievance redressal system for over the top (OTT) and digital portals in the country.