WhatsApp's Tryst with India's evolving Jurisprudence.

“If we are told to break encryption, then WhatsApp goes”

WhatsApp has recently challenged The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘Guidelines’) which require certain social media intermediaries to trace chats and make provisions to identify the first originator of
information.

Context –
Part 2 of the guidelines deals with due diligence to be observed by Intermediaries and the Grievance Redressal Mechanism to be deployed therein. 

It is pertinent to note that the aforementioned Guidelines (as updated on 06.04.2023) also stipulate Additional due diligence to be observed by significant social media intermediary (an intermediary having more than 50 lakh registered users in India as per Gazette Notification bearing number S.O. 942 (E) dated 25th February, 2021).

Clause 4 (2) of the Guidelines stipulate that significant social media intermediaries shall enable identification of the first originator of the information on its computer resource if required to do so by way of a judicial order or an order passed under Section 69 by any other competent authority under Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009.

WhatsApp’s Privacy Policy –
WhatsApp has long maintained that security is an essential feature of its service and that the same is ensured through end-to-end encryption wherein all messages and calls are secured with a lock. In simple terms, no third party including WhatsApp can access the
aforementioned calls and chats.

WhatsApp is often approached by law enforcement agencies throughout the World with questions and/or inquiries. Account records are disclosed in accordance with their terms of service and applicable law.

A valid subpoena/Court Order needs to be issued in connection with an official criminal
investigation or otherwise to compel the disclosure of basic subscriber records including name, service start date, last seen date, IP address and email address.

Government’s Stance –
The Union has made it clear at several instances that WhatsApp must comply with the law of the land and that it is committed to implement the new guidelines.

It has been time and again reiterated that it is important to trace the first originator of
messages in cases concerning fake news being circulated through WhatsApp leading to public unrest, acts of terrorism and mass violence is several cases.

Emphasis has been laid on the evolving jurisprudence around secondary liability of the intermediaries in the evolving landscape oh human interaction wherein the intermediary may not be the creator of the problematic or illegal content, it may still have to abide by certain stipulations of law as it enables the widespread publicity and advertisement of content.

WhatsApp has previously faced strict action from Irish Data Protection Regulators in 2021
wherein it was handed a record €225 million fine by the data protection regulators for lack of transparency about the way it handled users’ data.

It prompted WhatsApp to publish a new policy detailing how it collects uses, stores and
transfers customer data across borders, however, it did not change the manner in which WhatsApp operated its service. It will be interesting to see how WhatsApp deals with theevolving legal jurisprudence in India, its biggest market with over 2 billion users, if WhatsApp is prompted to change the way it offers its services and handles the personal data of its users

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