Complaint over Compliance: WhatsApp’s challenge to the new IT Rules

Global social media giant WhatsApp has moved to the High Court of Delhi, challenging the new IT Rules introduced by the Government of India. WhatsApp specifically protests against the traceability clause and contends it to be unconstitutional. This petition comes at a time when social media operators stand at the verge of being banned from continuing operations in India, as the three-month long deadline given by the Ministry of Electronics & Information Technology (MEITy) has expired.

What are the new rules?

The Information Technology (Guidelines for Intermediaries And Digital Media Ethics Code) Rules, 2021, notified by the Centre on February 25, 2021, inter alia to regulate and elevate ethical and grievance redressal standards and mechanisms followed by social media intermediaries. Such regulations purports to mandating such intermediaries, and especially those that hold a ‘significant’ position in society, to ensure a three-tier grievance redressal mechanism. Furthermore, the rules also mandate appointment of Chief Compliance Officer who shall ensure compliance with IT Act, 2000 and the rules made thereunder, along with appointing a nodal officer who shall be at 24/7 disposal for coordinating with law enforcement agencies.

Apart from the above, one of the most controversial and also extremely significant rules imposed is that of enabling ‘Traceability’. This rule mandates social media intermediaries to modify tech so as to enable tracking the origin of messages and posts.

Why challenge?

In a challenge to the clause of Traceability, WhatsApp contests that “The threat that anything someone writes can be traced back to them takes away people’s privacy and would have a chilling effect on what people say even in private settings, violating universally recognized principles of free expression and human rights.”

To enforce such a clause the social media intermediary would have to do away with its ‘end-to-end encryption’ facility, that ensures complete privacy protection of users. The operator also expresses concern about decoding and storing personal messages of users, which will be violative of the spirit of Article 21 and the Right to Privacy, a fundamental right recognized in Justice K.S. Puttaswamy vs. The Union of India.

References

1. The Information Technology (Guidelines for Intermediaries And Digital Media Ethics Code) Rules, 2021
2. Information Technology Act, 2000
3. Justice K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1
4. WhatsApp https://faq.whatsapp.com/general/security-and-privacy/what-is-traceability-and-why-does-whatsapp-oppose-it