In Delhi High Court Centre defends new IT rules by identifying WhatsApp as a “foreign entity”

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NEW DELHI: The Centre has opposed petitions by WhatsApp and its parent firm Facebook challenging the new IT Rules for social media by terming the global messaging platform as an “out and out foreign commercial entity”. Thus the Centre on Friday told the Delhi High Court that WhatsApp has no locus standi to challenge Indian laws. In an affidavit filed before the Delhi high court, the Centre said being a foreign commercial entity, WhatsApp cannot challenge the constitutionality of an Indian law, adding that the company doesn’t have a place of business in India and is engaged in the business of propagating information created by its users.

“Constitutionality of a provision of law cannot be challenged by a foreign commercial entity on the ground of it being violative of Article 19 rights. The said rights are only available to citizens,” the affidavit submitted.

“The writ jurisdiction of this Hon’ble Court has been invoked by the petitioner which is an out and out foreign commercial entity – it does not have any place of business in India and is engaged in the business of propagating information created by its platform users. The instant writ petition challenging the Constitutionality of any Indian law is, hence, not maintainable at the instance of a foreign commercial entity,” said the Centre.

Defending the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and its proviso allowing traceability of the originator of a message, the government said it is meant to help law enforcement prevent offences.

Citing earlier Supreme Court rulings, the government said it is duty bound to take all steps necessary to identify persons who create and circulate electronic information on sexual crimes. The government also questioned the claim of WhatsApp that traceability will lead to breaking the end-to-end encryption feature of the platform, saying there is technology available with the company to trace the sender or the creator of a message without intercepting other users.

It further raised concerns over WhatsApp’s new privacy policy, saying that it allows sharing of information with Facebook, which “can be used for profiling” of citizens.

“Under its mandatory privacy policy, personal data of the users would be shared with Facebook, which can be used for profiling. Such profiling is also feasible on political and religious views and can be used for any activity which can harm the security of the nation, its sovereignty and integrity besides affecting individual privacy,” it added.

The Facebook-owned WhatsApp 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”. It has urged the high court to declare Rule 4 (2) of the Intermediary Rules as unconstitutional, ultra vires to the IT Act and illegal and sought that no criminal liability be imposed on it for any alleged non-compliance with Rule 4 (2) which requires to enable the identification of the first originator of information.

The messaging platform has made the Centre, through the ministry of electronics and information technology, a party to the petition, and argued that the traceability clause inserted in the rules is unconstitutional and against the fundamental right to privacy, besides having the potential to target activists and journalists.

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