WhatsApp traceability: Supreme Court refuses to stay Madras HC proceedings

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Updated: August 21, 2019 7:14:26 AM

The social networking giant is wanting transfer of the four petitions on the WhatsApp traceability issue, pending before different high courts, to the Supreme Court.

WhatsApp, WhatsApp traceability, Supreme Court, Madras HC, FacebookThe social networking giant is wanting transfer of the four petitions on the WhatsApp traceability issue, pending before different high courts, to the Supreme Court. (Image: Reuters)

In a setback to Facebook, the Supreme Court on Tuesday refused to stay the proceedings in the Madras High Court in a case related to linking of the social media profiles of users with Aadhaar. A Bench headed by Justice Deepak Gupta while issuing notice to the Centre and Trai and various social media platforms such as Google, YouTube and Twitter refused to stay the hearing in the Madras HC. The HC is taking up the case on Wednesday.

The Bench also observed that “there is a conflict between privacy and how the government should run the country when crimes are committed. There has to be a balance…under what condition information can be given and to whom.”

The order came after Attorney General KK Venugopal, on behalf of the Tamil Nadu government, told the Bench that there was no need to stay or transfer the case from the Madras HC as the Supreme Court would have the benefit of the HC order on this complex issue. He argued that the issue of tracing a message on social media had troubled Indian law enforcement authorities for a while now. “We still don’t know who runs Blue Whale game, and it abetted so many suicides in India,” he said, adding that the Madras HC is being assisted by an IIT professor, who has claimed that he can help in tracing the origin of a message.

The Supreme Court also said that it was “aware of Blue Whale. What is happening in dark web is worse than Blue Whale. The idea of the Madras HC expanding the issue was that, if need be, shouldn’t the intermediary inform the police about details of person for crime detection? We are not examining the merits of the case, only dealing with the transfer of the cases to the Supreme Court.”

Both Facebook and WhatsApp told the apex court that the case of this magnitude where policy issues are involved and the privacy of the entire nation will be affected should be heard by the highest court of the country. “If a person copies YouTube and sends as a WhatsApp message then who is the originator? It’s a huge problem,” it said.

The social networking giant is wanting transfer of the four petitions on the WhatsApp traceability issue, pending before different high courts, to the Supreme Court.

All the petitions before the HCs of Madras, Delhi, Bombay and Madhya Pradesh have sought similar relief to link Aadhaar information to social media accounts, which would potentially allow for the attribution of content to the person who posted such content, Facebook said. However, the Madras HC had expanded the scope of the petition to include issues like “curbing cybercrime and intermediary liability.”

Since the petition involves interpretation of central legislations such as Information Technology Act, 2000, and the Aadhaar and Other Laws (Amendment) Ordinance 2019, it is better if the petitions are heard by the apex court itself rather than by multiple fora, Facebook stated, adding that any conflicting findings would have far reaching implications for the general public/social media users, the central government and various state governments.

Facebook argued that as an international organisation, it has to comply with all rules across jurisdictions. Stating that no country in the world has interfered in the process of our product, it further said that it is not appropriate for a HC to expand scope of the petition on the request of a Chennai Police Commissioner, who sought directions for Aadhaar to better crime detection.

It said that if someone puts an obscene picture, it can be still complained against. WhatsApp, which sees traceability as a violation of user privacy, has been opposing the government’s attempt to enable traceability to help law enforcers catch perpetrators of misinformation on the instant messaging platform. Its lawyer Kapil Sibal argued that the Centre was already working on a law governing the issue, and therefore it should not be left to a high court.

In end-to-end encryption, the key was not with us but with the sender and there was no point having piecemeal hearings at different places, he added. The instant messaging app reportedly has over 200 million active users in India. The next date of hearing is on September 13.

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