Govt says new digital rules don’t violate privacy; seeks compliance report from social media firms

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Updated: May 26, 2021 8:27 PM

The government recognises that 'Right to Privacy' is a fundamental right and is committed to ensure the same to its citizens, it said.

"Therefore, WhatsApp's attempt to portray the Intermediary Guidelines of India as contrary to the right to privacy is misguided," the official statement said.

The government on Wednesday staunchly defended its new digital rules, saying the requirement of messaging platforms such as WhatsApp to disclose origin of flagged messages does not violate privacy, and went on to seek a compliance report from social media firms.

A day after WhatsApp filed a lawsuit in the Delhi High Court challenging the new digital rules on grounds that the requirement for the company to provide access to encrypted messages will break privacy protections, IT Minister Ravi Shankar Prasad said the new norms will not impact normal functioning of the popular free-messaging platform.

The requirement of tracing origin of messages under new IT rules is for prevention and investigation of “very serious offences” related to sovereignty and integrity of India and security of the state, a statement from his ministry said.

Separately, the ministry asked social media companies such as Facebook, Twitter, YouTube, Instagram and WhatsApp to report their status on compliance with the new rules, which kicked in from Wednesday.

The new rules, announced on February 25, require large social media platforms to follow additional due diligence, including the appointment of chief compliance officer, nodal contact person and resident grievance officer.

Non-compliance with rules would result in these social media companies losing their intermediary status that provides them exemptions and certain immunity from liabilities for any third-party information and data hosted by them. In other words, they could be liable for criminal action in case of complaints.

Sources with knowledge of the matter said the ministry asked the social media companies to immediately provide details and contact information of the chief compliance officer and resident grievance officer.

The ministry in the statement termed WhatsApp’s last moment challenge to the intermediary guidelines as an unfortunate attempt to prevent the norms from coming into effect.

The UK, US, Australia, New Zealand and Canada require social media firms to allow for legal interception, it said, adding “What India is asking for is significantly much less than what some of the other countries have demanded”.

“Therefore, WhatsApp’s attempt to portray the Intermediary Guidelines of India as contrary to the right to privacy is misguided,” the official statement said.

The government recognises that ‘Right to Privacy’ is a fundamental right and is committed to ensure the same to its citizens, it said.

The statement quoted Prasad as saying that the government “is committed to ensure the Right of Privacy to all its citizens but at the same time it is also the responsibility of the government to maintain law and order and ensure national security.”

Prasad also stated that “none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact.”

“The Government respects the Right of Privacy and has no intention to violate it when WhatsApp is required to disclose the origin of a particular message.

“Such requirements are only in case when the message is required for prevention, investigation or punishment of very serious offences related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material,” the statement said.

It said the requirements in the intermediary guidelines pertaining to the first originator of information are an example of “reasonable restriction”.

The ministry noted that after October 2018, no specific objection has been made by WhatsApp to the government in writing over the requirement to trace the first originator in relation to serious offences.

The company had generally sought extension of the timeline for enforcement of guidelines but did not make any formal reference that traceability is not possible, the statement said.

“Any operations being run in India are subject to the law of the land. WhatsApp’s refusal to comply with the guidelines is a clear act of defiance of a measure whose intent can certainly not be doubted,” the statement said.

On one hand, WhatsApp sought to mandate a privacy policy wherein it will share the data of all its user with its parent company, Facebook, for marketing and advertising purposes, while on the other, the platform makes every effort to refuse the enactment of the

Intermediary Guidelines necessary to uphold law and order and curb the menace of fake news, the statement noted.

“As a significant social media intermediary, WhatsApp seeks a safe harbour protection as per the provisions of the Information Technology Act.

“However, in a befuddling act, they seek to avoid responsibility and refuse to enact the very steps which permit them a safe harbour provision,” the statement pointed out.

The Centre’s strong response comes after WhatsApp filed a lawsuit in the Delhi High Court challenging the government’s new digital rules. WhatsApp argues that the requirement for the company to provide access to encrypted messages will break privacy protections.

In the note to the social media companies, seen by PTI, the ministry said, “As you including your parent company or any other subsidiary, provide a variety of services in India some of which falls within the definition of SSMIs (significant social media intermediaries) in the context of the IT Act and the aforesaid Rules. Accordingly, as part of ascertaining the compliance to these Rules, you are requested to provide the following information…”

Apart from details such as the name of the app, website, and service falling within the scope of a significant social media intermediary, the ministry has sought details of the three key personnel, as well as the physical contact address of the platform in India.

It has asked the platforms to report on the status of compliance with the new rules.

“If you are not considered as SSMI, please provide the reasons for the same including the registered users on each of the services provided by you. The Government reserves the right to seek any additional information, as may be permitted within these Rules and the IT Act,” it said.

The ministry has asked large social media companies to confirm and share their response at the earliest “and preferably today itself”.

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