India / Foreign entity like WhatsApp can't challenge Indian law: Centre to Delhi HC

New Delhi: The Union government on Friday told the Delhi high court that it is the legal obligation of social media intermediaries Facebook and WhatsApp to evolve a mechanism to identify who first sent a message that may have been forwarded to others, and they could not claim technical difficulties to deny legal compliances.

WhatsApp was among the first big companies to challenge Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 saying its section 4(2), which makes it mandatory for companies to trace which user first sent a forwarded message, would amount to a “dangerous invasion of privacy” and defeat a concept known as end-to-end encryption.

The government rejected the position. “…it is submitted that the petitioners (Facebook & WhatsApp) being platforms with high technical infrastructure, user base, and revenue base, need to create appropriate mechanism to identify the unlawful information’s origin and the first Indian originator of such information without compromising end-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.

The IT Rules have already been stayed by multiple high courts after petitioners challenged other sections, some of which pertain to social media companies and streaming content service providers like Netflix, for executive overreach and other violations of Constitutional provisions.

The Centre, reacting to WhatsApp’s position, said that it expects platforms to either prevent online illegal content themselves or assist law enforcement agencies to identify the originator of such unlawful content.

“It is submitted that 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,” it said.

The government also appeared to invoke issues unrelated to WhatsApp’s technical design.

“It is well clear that WhatsApp collects users’ personal information and shares it with Facebook and third party entities for business/commercial purposes (WhatsApp’s privacy policy of 2016 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 ministry of electronics and information technology.

The Centre said this sharing of information is in addition to the fact that under their mandatory privacy policy, personal data of users would be shared with Facebook which can, it said, be used for profiling.

The Centre 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 propagating information created by its platform users. They, the government claimed, cannot 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.