The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, announced in February this year, came into effect on 26th May. The social media intermediaries, streaming platforms and digital media houses were given three months to implement the rules. But for some reason, almost all of them ignored the rules completely and did nothing to either implement or challenge them in the last three months. When the new IT rules came into effect, the impacted platforms have hurried to file lawsuits against them or seek more times from the govt.
Twitter has sought another three more months to comply with the rules, Facebook and Google have said they are ready to implement the rules, but need some time. On the other hand, Facebook-owned messaging app WhatsApp has filed a lawsuit at the Delhi High Court challenging the new IT rules, saying it violates the privacy rights of the citizens. It may be noted that while the social media companies have suddenly woken up to the new IT rules, Digital Media platforms had already challenged it in March, when The Wire, The Quint and LiveLaw had filed against the provisions on digital media contained in the rules.
The main issue that WhatsApp is objecting to is the traceability clause. The section 5(2) of the IT rules says that significant social media intermediaries providing messaging services must enable the identification of originator of messages that violates certain laws. According to the new rules, if a message that originates on a messaging platform like WhatsApp violates any law that carries jail term of minimum five years as punishment, the company must reveal the originator of such messages.
This is not an issue with general social media platforms like Twitter and Facebook, where posts are generally available in public. But it is created a big problem for messaging apps like WhatsApp, Telegram etc, as they have built the platforms around privacy, and complying with the rules means that they will have to break their own privacy features.
WhatsApp have claimed that complying with the new IT rules will break end-to-end encryption of the app and it fundamentally undermines people’s right to privacy. While it is true that WhatsApp may have to make some modifications in its codes, its claim that the rules violate the rights of privacy is completely wrong.
This is because, the government of India is not asking the messaging platforms to reveal the origin of every message, they are being asked to identify the origin of messages that constitute serious violations of laws of the land. According to the rules, the messaging app companies will have to identify the origin of messages that threaten the sovereignty and integrity of India, friendly relations with other nations, public order, and offences related to rape, child sexual abuse material, sexually explicit material etc only. Moreover, the companies will have to reveal the originator only if they are ordered to do so by a court or a competent authority and the case involves charges that carries imprisonment for a term of not less than five years.
This means, before the rules, if someone had posted a video of a sexual assault of a girl on WhatsApp, or a video of a terrorist issuing threat, the authorities could not ask the company to reveal the origin of the video so that the culprits can be traced and booked. The New IT rules address that problem, and ensures that the origin of messages that are serious violation of select laws are identified. It may be noted that posts related to defamation, fake news etc are not covered under these rules. If some message is accused of defaming someone or spreading fake news, the platforms will not be asked to reveal the origin of such posts.
WhatsApp is specifically known for number of rape and sexual harassment videos that circulate on the platform. When activists and police find such videos, they take steps to identify the victim and the culprits, but often it is difficult to trace the origin of such videos to find them, as the videos reach the police after being forwarded by dozens of people, with no sign of the origin. With the new rules, WhatsApp will be required to keep tag of the origin of such messages, so that in case of serious violations, the authorities can question the origin of such messages, who can be either witnesses or criminals themselves. Therefore, this will ensure that the criminals will be brought to the book, if the origin of such messages that violates laws can be identified.
Responding to the objections of WhatsApp, the union government has also clarified the government respects the right of privacy and has no intention to violate it when WhatsApp is required to disclose the origin of a particular 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. Right to Privacy is a Fundamental Right,” the Ministry of Electronics and IT said in a press statement.
The departmental minister Ravi Shankar Prasad has said that its entire objective is to find out who started the message that led to commissioning of specific crimes mentioned in the rules, and ordinary users have nothing to fear about the rules. “The new Rules are only designed to prevent abuse & misuse of social media. Govt welcomes criticism including the right to ask questions. The Rules only empower the ordinary users of social media when they become victims of abuse & misuse,” the minister added.
It is notable that while WhatsApp is opposing the IT rules citing violation of privacy rights, it itself has silently enforced its own controversial privacy rules to share its user data with other Facebook companies. The arbitrary decision to update its privacy norms has led its users to believe that WhatsApp would now be able to peek into its users’ personal messages and share the personal data of users with Facebook.