Facebook, WhatsApp Monetise Users' Info, Not Entitled To Privacy Protection Claim: Centre Tells HC

The Centre put forth its views in the affidavit filed in response to WhatsApp's challenge to the rule on the ground that breaking the encryption invades its users' privacy.

New Delhi: Defending the legal validity of its new IT rule requiring messaging apps to trace the information’s first originator, the Central government on Friday informed the Delhi High Court that 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.

The Centre put forth its views in the affidavit filed in response to WhatsApp's challenge to the rule on the ground that breaking the encryption invades its users' privacy.

READ: ISRO Spy Case: Kerala HC Extends Ex-DGP Siby Mathews's Anticipatory Bail

The Centre said that Section 87 of the Information Technology Act gave it the power to formulate Rule 4(2) of the Intermediary Rules.

Throwing light on the same, the Centre said Rule 4(2) of the Intermediary Rules mandates a significant social media intermediary to enable the identification of the information’s first originator in legitimate state interest of curbing the menace of fake news and offences concerning national security and public order as well as women and children, PTI reported.

The Centre claimed that platforms monetize users' information for business/ commercial purposes are not legally entitled to claim that it protects privacy.

The affidavit filed by Ministry of Electronics and Information Technology said 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, PTI reported.

The reasons regarding technical difficulties cannot be an excuse to refuse compliance to the law of the land, the Centre said, adding if a platform does not have the means to trace the first originator without breaking the encryption then it is the platform which ought to develop such mechanism in larger public duty.

The affidavit said the Rule does not contemplate the platforms breaking the end-to-end encryption, adding the Rule only contemplates the platform to provide the details of the first originator by any means or mechanism available with the platform.

Asserting reasons regarding 'technical difficulties' cannot be an excuse to refuse compliance to the law of the land, 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.

Stating the traceability provision is unconstitutional and against the fundamental right to privacy, WhatsApp has in its plea said the requirement of intermediaries enabling the identification of the first originator of information in India upon government or court order puts end-to-end encryption and its benefits “at risk”.