Govt reiterates its commitment to Right to Privacy in WhatsApp case

Govt reiterates its commitment to Right to Privacy in WhatsApp case

Measures proposed by India will not impact the normal functioning of WhatsApp in any manner whatsoever, Government of India reassures

Indian authorities have reiterated that it is fully committed to the Right of Privacy of its denizens and that its recent order will not impact the normal functioning of WhatsApp in any manner whatsoever.

A press release issued by the Ministry of Electronics and Information Technology has said that it has no intention to violate the Right to Privacy when requiring WhatsApp to disclose the origin of a message.

"Such requirements are only in case when the message is required for prevention, investigation or punishment of very serious offences related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material," the press release issued on 26 May stated.

It said that the Government of India recognises that 'Right to Privacy' as being a valuable fundamental right, informed that Minister of Law and Justice Ravi Shankar Prasad has stated that "none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact".

On the Traceability Clause under Rule 4(2) of Intermediary Guidelines, the press release has clarified that the rule passes the proportionality test of the Constitution of India.

"The cornerstone of this test is whether a lesser effective alternative remedy exists. As per the Intermediary Guidelines, the originator of information can only be traced in a scenario where other remedies have proven to be ineffective, making the same a last resort measure. Moreover, such information can only be sought as per a process sanctioned by the law thereby incorporating sufficient legal safeguards," the press release said.

It has been clarified that the order to trace the first originator, under Rule 4(2) of the said guidelines shall be passed only for offences punishable with imprisonment for not less than five years.

"It is in public interest that who started the mischief leading to such crime must be detected and punished. We cannot deny as to how in cases of mob lynching and riots etc. repeated WhatsApp messages are circulated and recirculated whose content are already in public domain. Hence the role of who originated (it) is very important," the press release explained.

It further stated that WhatsApp's challenge, at the very last moment, and despite having sufficient time and opportunity available during the consultation process and after the rules were enacted, to the Intermediary Guidelines "is an unfortunate attempt to prevent the same from coming into effect."

It was also pointed out that post-October 2018, no specific objection was made by WhatsApp to the Government of India in writing relating to the requirement to trace the first originator in relation to serious offences.

The government has asserted that any operations being run in India are subject to the law of the land. "WhatsApp's refusal to comply with the guidelines is a clear act of defiance of a measure whose intent can certainly not be doubted. At one end, WhatsApp seeks to mandate a privacy policy wherein it will share the data of all its user with its parent company, Facebook, for marketing and advertising purposes," the press release stated.

"It would be foolhardy to doubt the objective behind Rule 4(2) of the Intermediary Guidelines, which aims to protect law and order. All sufficient safeguards have also been considered as it is clearly stated that it is not any individual who can trace the first originator of information. However, the same can only be done by a process sanctioned by the law. Additionally, this has also been developed as a last resort measure, only in scenarios where other remedies have proven to be ineffective," the press release added.

Meanwhile, Whatsapp challenged the "traceability" clause in the Delhi High Court, alleging that the aforesaid clause is violative of a person's right to privacy as enshrined in the Supreme Court judgment of KS Puttuswamy v. Union of India.

The Facebook-owned company has contended in the Court that the traceability would force private companies to collect and store who-said-what and who-shared-what for billions of messages sent each day. This will require platforms to collect more data than they need, solely to turn it over to law enforcement agencies.

The Government of India, however, is in no mood to relent on it despite reservations and objections raised by WhatsApp.