The Centre said that Section 87 of the Information
Technology Act gave it the power to formulate Rule 4(2) of the Intermediary
Rules – which mandates a significant social media intermediary to enable the
identification of the first originator of information in “legitimate state
interest” of curbing the menace of fake news and offences concerning national
security and public order as well as women and children.
In its affidavit filed in response to WhatsApp's challenge
to the rule on the ground that breaking the encryption invades its users'
privacy, the Centre has claimed that platforms “monetise users' information for
business/ commercial purposes are not legally entitled to claim that it
protects privacy”.
“Petitioners (WhatsApp and Facebook), being multi-billion
dollar enterprises, almost singularly on the basis of mining, owning and
storing the private data of natural persons across the world and thereafter
monetising the same, cannot claim any representative privacy right on behalf of
the natural persons using the platform,” said the affidavit filed by Ministry
of Electronics and Information Technology.
“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). In fact, the
regulators of various countries dearly hold that Facebook should be fixed with
accountability for its services and data management practices,” it added.
The Centre said reasons regarding technical difficulties
cannot be an excuse to refuse compliance to the law of the land and if a
platform does not have the means to trace the “first originator” without
breaking the encryption then it is the platform which “ought to develop such
mechanism” in larger public duty.
“The Rule does not contemplate the platforms breaking the
end-to-end encryption. The Rule only contemplates the platform to provide the
details of the first originator by any means or mechanism available with the
platform.
If the platform does not have such means, the platform ought
to develop such mechanism considering the platforms widespread prevalence and
the larger public duty,” the affidavit said.
The Centre said “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. Reasons regarding
'technical difficulties' cannot be an excuse to refuse compliance to the law of
the land.”
In August, a bench headed by Chief Justice DN Patel had
sought the Centre's stand on WhatsApp petition challenging new rule on the
ground it violates the right to privacy and is unconstitutional.
WhatsApp's parent company Facebook has also mounted a
similar challenge to the rule.
In its plea, WhatsApp had said that the traceability
requirement forced it “break end-to-end encryption” and thus infringe upon the
fundamental rights to privacy and free speech of the hundreds of millions of
citizens using its platform to communicate privately and securely.
The Centre, in its response, has said that the petition by
WhatsApp is not maintainable as a challenge to the constitutionality of any
Indian law is not maintainable at the instance of a foreign commercial entity.
It further claimed that Rule 4(2) is an “embodiment of
competing rights of citizens of India” and aims to preserve the “rights of
vulnerable citizens within the cyberspace who can be or are victims of
cyber-crime”.
The Centre said there are checks and balances to ensure that
the rule is not misused or invoked in cases where other less intrusive means
are effective in identifying the originator of the information.
The identification of the first originator pertains only to
viral content relating to heinous crimes, as specified in the rule, and not
identifying all users or citizens, it said.
“If the IT Rules 2021 are not implemented the law
enforcement agencies will have difficulty in tracing the origin of fake
messages and such messages will percolate in other platforms thereby disturbing
peace and harmony in the society further leading to public order issues,” the
affidavit said.
The Centre has also said that in case of any legal
proceeding having any message on the platform as evidence, WhatsApp would lose
the defence of 'intermediary protection' but it “does not mean that WhatsApp
will be held guilty and its officials would be legally responsible”.
“The courts can include WhatsApp as a respondent and
consider 'Contributory Negligence' and 'Vicarious liability on WhatsApp and its
executives' (under Section 85). Such liabilities will fructify only when such a
case comes up and WhatsApp is named as an entity that it is sufficiently proved
that it has contributed to the commission of the crime,” it added.
The centre also said that the Supreme Court itself had asked
the Central government to “take all the steps necessary to identify persons who
create and circulate electronic information” about certain offences such as
sexual abuse.
0 comments:
Post a Comment