Govt says WhatsApp does not have the legal authority to dispute Indian laws

The government submitted an affidavit before the Delhi High Court on Friday, claiming that WhatsApp, as a foreign organisation with no place of business in India, cannot challenge the legality of Indian laws.

WhatsApp sued the Indian government in the Delhi High Court in May, requesting that the traceability clause of the Indian IT (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 be struck down, which requires social media platforms with more than 5 million users to locate “the first originator of the information” if authorities demand it.

According to the government affidavit, WhatsApp cannot exercise fundamental rights under Article 19 and 21 of the constitution, invoke the court’s jurisdiction, or dispute the legality of an Indian law because it is a foreign firm.

According to the government’s affidavit, filed through the Ministry of Electronics and Information Technology, “the constitutionality of a provision of law cannot be challenged by a foreign commercial entity on the ground that it is violative of Article 19 rights.” “The principle of representative action is not applicable in the facts of the case,” the statement continues, “and there is no fundamental right to anonymity under Part III of the constitution.”

According to the affidavit, the traceability requirement does not require breaking end-to-end encryption and is the least invasive method of identifying the source of information. It stated that WhatsApp’s unwillingness to change its technology in order to comply with the legislation is insufficient to nullify the law.

In May, a WhatsApp representative stated that requiring messaging companies to “track” talks was “akin to asking us to preserve a fingerprint of every single message transmitted on WhatsApp, which would violate end-to-end encryption and fundamentally undermine people’s right to privacy.”

WhatsApp, which is owned by Facebook, has previously stated that it will not breach encryption because it jeopardises its customers’ privacy. With over 400 million users, India is WhatsApp’s largest market.

By mandating private messaging systems like WhatsApp to keep track of who said what and who shared what for billions of messages transmitted every day, “traceability” undermines consumer privacy. Traceability necessitates messaging providers storing information that can be used to determine the content of people’s messages, hence jeopardising the end-to-end encryption guarantees.

“To trace even one communication, services would have to trace every message,” WhatsApp wrote in a blog post earlier this year, explaining why it opposed traceability.

In the Prajwala case, the apex court asked the government to identify persons who create or circulate problematic content related to child abuse or rape, and the government added in an affidavit that WhatsApp’s petitions must be dismissed because the MeitY does not lack legislative competence to enact the IT Rules. as well as the fact that traceability will aid in the fight against fake news.