LEGAL CORRESPONDENT – MANINI KAUR
October 23,2021- The Union government defended the legality of its new IT rule requiring messaging apps like WhatsApp to trace the first originator of information in the Delhi High Court, claiming that the law empowers it to expect such entities to create a safe cyberspace and combat illegal content either themselves or by assisting law enforcement agencies.
The Centre stated in an affidavit submitted before the that WhatsApp, as a foreign commercial organisation, cannot contest the legality of an, adding that the firm has no physical presence in India and is in the business of disseminating information provided by its users.
"A foreign commercial corporation cannot contest the constitutionality of a statute on the grounds that it violates Article 19 rights." "The aforementioned rights are exclusively available to citizens," according to the document.
The government defended the new (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and its proviso permitting traceability of a message's author, claiming that it will aid law enforcement in preventing crimes.
It also expressed alarm over WhatsApp's new privacy policy, claiming that it permits information to be shared with Facebook, which "may be utilised for citizen profiling." “ Users' personal data will be shared with Facebook under its mandated privacy policy, which might be used for profiling Such profiling is also possible based on political and religious beliefs, and it may be used for "any action that jeopardises the nation's security, sovereignty, and integrity while simultaneously jeopardising individual privacy," according to the report.
According to the Union government, Section 87 of the Information Technology Act gave it the authority to draught Rule 4(2) of the Intermediary Rules, which mandates a significant social media intermediary to enable the identification of the first source of information in the legitimate state interest of combating fake news and other national security and public order offences.
The Union government claims that platforms that monetize users' information for business/commercial purposes are not legally entitled to claim that it protects privacy in an affidavit filed in response to WhatsApp's challenge to the rule on the grounds that breaking the encryption intrudes on its users' privacy.
According to the statement, the identification of the original creator is limited to viral information linked to heinous crimes, as defined by the regulation, and does not include all users or citizens.
The affidavit stated that if the IT Rules 2021 are not implemented, law enforcement authorities will have trouble tracking the origin of bogus statements, and such messages may spread to other platforms, disrupting peace and harmony in society and causing public order concerns.
The Union government has also said that in the event that any communication on the platform is used as evidence in a court action, WhatsApp would lose its 'intermediary protection,' although this does not imply that WhatsApp will be found guilty or that its personnel will be held legally liable.
The courts might examine 'Contributory Negligence' and 'Vicarious Liability on WhatsApp and its Executives' if WhatsApp is named as a respondent (under Section 85). Such obligations would only come to fruition if a case arises in which WhatsApp is mentioned as an entity and it is adequately proven that it was involved in the crime's conduct, it said.
The Union government further stated that the Supreme Court has directed the Central government to take all necessary efforts to identify those who develop and distribute electronic material regarding crimes such as sexual abuse.
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