On 25th May 2021, WhatsApp filed a lawsuit seeking to quash some provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Information Technology 2021 rules. The rules came into force on 25th May 2021.
The rules include a traceability clause. The clause requires the social media platforms to locate the first originator of the information if a court or a competent authority under Section 69A of the IT Act wants it to do so.
WhatsApp fears that Rule 4(2) of the 2021 rules will break WhatsApp’s encryption which ensures that messages cannot be read by anyone other than the sender and the receiver.
The Justice K S Puttaswamy judgement says a person’s right to privacy must be preserved except in cases where legality, necessity, and proportionality are all weighed against it. The right to privacy however has some exceptions. This is perhaps the first time that these exceptions will truly be tested in a high stake court case.
In this case WhatsApp will have to prove that the rules enforced by the government are beyond the limited exceptions carved out by the Puttaswamy judgement.
The Government, of course, has genuine grounds to seek information for security purposes and crime prevention. However, such invasions by the State into privacy of the citizens must satisfy tests of proportionality and legitimacy.
The rules empower the government with wide powers to seek data from the online platforms with no concern towards the individual’s right to privacy.
WhatsApp says tracing the first originator of messages will require the platform to trace every message sent by every user. Such a situation will defintely dampen the question of individual’s privacy.
This case is going to be a fit test of recently evolved right to privacy in India.
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