WhatsApp moves Delhi HC over new social media intermediary rules: Top points to know

Social messaging app WhatsApp has approached the Delhi High Court challenging the new IT rules for social media intermediaries requiring the messaging app to trace chats and make provisions to identify the first originator of information, the company's spokesperson said and PTI reported. 

The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were announced by the government on 25 February 2021 and it requires large social media platforms like Twitter, Facebook, Instagram and WhatsApp to comply with the norms by 25 May. 

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Under the new digital media ethics code, large platforms must follow additional due diligence, including the appointment of a chief compliance officer, nodal contact person and resident grievance officer. 

Facebook-owned WhatsApp said the traceability provision is unconstitutional and against the fundamental right to privacy, the PTI report said. 

WhatsApp spokesperson said that requiring messaging apps to trace' chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermine people's right to privacy, PTI reported. The spokesperson confirmed of filing the petition in the high court of Delhi on Tuesday, this report said. 

“We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us, the spokesperson said in a statement.”

The company said that in addition to calling for traceability, there is a risk of criminal penalties for non-compliance in the IT rules. 

According to the company, end-to-end encryption was designed to help ensure that nobody other than the person being sent a message knows the content of the message, PTI report said. This “is the exact opposite of traceability, which would reveal who sent what to whom,” this report said quoting the WhatsApp spokesperson. 

It said traceability would force private companies to collect and store who-said-what and who-shared-what for billions of messages sent each day, WhatsApp said in its petition. This will require platforms to collect more data than they need, solely for the purpose of turning it over to law enforcement agencies, PTI reported. 

Company tells why traceability would not be effective:  

It added that traceability would not be effective in finding the originator of a particular message because people commonly see content on websites or social media platforms and then copy and paste them into chats and it would also be impossible to understand the context of how it was originally shared, the PTI report further said that. 

The company said it does not believe traceability can be imposed in a way that cannot be spoofed or modified, leading to new ways for people to be framed for things they did not say or do and such massive data collection also makes messaging platforms inherently less secure by opening up more avenues for hacking. 

As per data cited by the government, India has 53 crore WhatsApp users, 44.8 crore YouTube users, 41 crore Facebook subscribers, 21 crore Instagram users, while 1.75 crore account holders are on microblogging platform Twitter. 

The new rules were introduced to make social media platforms like Facebook, WhatsApp, Twitter and Instagram -- which have seen a phenomenal surge in usage over the past few years in India -- more accountable and responsible for the content hosted on their platform. 'Significant social media intermediaries' - defined as those with over 50 lakh registered users - were given 3-months to comply with the additional requirements. 

Other rules that companies must follow 
-- Social media companies will have to take down posts depicting nudity or morphed photos within 24 hours of receiving a complaint.  
-- The rules require significant social media intermediaries -- providing services primarily in the nature of messaging -- to enable identification of the "first originator" of the information 
-- The rules also state that users who voluntarily want to verify their accounts should be given an appropriate mechanism to do so, and be accorded a visible mark of verification.