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WhatsApp, Facebook not legally entitled to claim they protect privacy, Centre tells Delhi HC

WhatsApp, Facebook not legally entitled to claim they protect privacy, Centre tells Delhi HC
WhatsApp and Facebook are not legally entitled to claim they protect privacy

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WhatsApp, Facebook not legally entitled to claim they protect privacy, Centre tells Delhi HC

WhatsApp and Facebook, which monetize users’ personal information for commercial purposes are not legally entitled to claim they protect privacy, the Centre told the Delhi High Court. This was in response to a petition by WhatsApp challenging the 2021 IT Rules’ requirement for enabling the traceability of online messages.




However, the government said the petition is not maintainable as the company is a foreign entity and it cannot claim rights under Article 21, including the right to privacy. The Ministry of Electronics & IT told the court that the IT Rules are framed based on the basis of numerous parliamentary and judiciary recommendations which sought to protect the users against child sex abuse material, fake news and other harmful online content which was considered to be beyond the bounds of free speech.

Rule 4(2), the government said neither mandates breaking WhatsApp’s encryption nor the State seeks to do so but the assertion that there exists a difficulty in changing the architecture of the significant social media intermediary cannot be a ground for judicial review. The government expects the platforms to either prevent online illegal content by themselves or assist law enforcement agencies to identify the originator of such unlawful content.

In its petition, Whatsapp said that requiring the intermediaries to enable identification of the first originator of information on their platforms could put journalists and activists at risk of retaliation in India and also infringe upon people’s fundamental right to freedom of speech and expression. But the Centre said it’s for the Facebook-owned company to create a mechanism to enable identification of the first originator without disrupting encryption.

“Any order under the rule can be passed only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the Security of State, friendly relations with foreign States, or public order or of incitement to such an offence and in relation with rape, sexually explicit material or child sexual abuse material,” it said.


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The government also raised questions over WhatsApp’s privacy policy saying that when personal data of users is shared with Facebook, it can be used for profiling. “Such profiling is also feasible on the political and religious views and can be used for any activity which can harm the security of the nation, its sovereignty and integrity besides affecting individual privacy.”


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