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Foreign Entity Like WhatsApp Can’t Challenge Indian Law: Centre To Delhi HC

Mumbai: Opposing WhatsApp’s plea against the new IT rules, the Centre told the Delhi High Court that WhatsApp, which is a foreign entity, cannot challenge the “constitutionality of any Indian law”.

WhatsApp was one of the first major companies to challenge the Information Technology (Intermediate Guidelines and Digital Media Code of Conduct) Rules, 2021, which said its Section 4(2), which makes it mandatory for companies to find out which user first forwarded the message would amount to a “dangerous invasion of privacy” and would defeat the concept known as end-to-end encryption.

WhatsApp said the traceability provision is unconstitutional and against the fundamental right to privacy. The traceability requirement compels the company to break the end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and violates the fundamental rights to privacy free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely, the plea said.

It said WhatsApp enables government officials, law enforcement, journalists, members of ethnic or religious groups, scholars, teachers, students and the like to exercise their right to freedom of speech and expression without fear of reprisal.

The government rejected the position. “…It is submitted that the petitioners (Facebook and WhatsApp), being platforms having high technical infrastructure, user base and revenue base, are required to generate illegal information and to identify the first Indian originator of such information. There is a need to put in place suitable mechanism-to-end encryption,” it said in an affidavit filed before Chief Justice DN Patel and Justice Jyoti Singh.

“It is submitted that reasons regarding “technical difficulties” cannot be an excuse to refuse compliance to the law of the land,” the government added.

“It is well clear that WhatsApp collects users’ personal information and shares it with Facebook and third-party entities for commercial/business purposes (WhatsApp’s 2016 Privacy Policy and its 2021 Update). Hence WhatsApp and Facebook which monetizes users’ information for business/commercial purposes are not legally entitled to claim that it protects privacy…” said the document filed by the ministry of electronics and information technology.

The Center said this sharing of information is in addition to the fact that under their mandated privacy policy, users’ personal data will be shared with Facebook, which can be used for profiling.

The Center said companies like WhatsApp, which are foreign commercial entities, do not have a place of business in India and are engaged in the business of dissemination of information created by their platform users. The government claimed that it could not challenge the validity of Indian laws.

“The instant writ petition challenging the Constitutionality of any Indian law is hence not, maintainable at the instance of a foreign commercial entity,” the Centre said, adding that the rights to challenge are exclusively available to Indian citizens and natural persons.

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