Experts see ground for WhatsApp to file lawsuit

NEW DELHI:  With the tussle between Centre and WhatsApp escalating, and the latter filing a lawsuit against the government on Wednesday, experts felt there are technical difficulties, as mentioned in the petition. Medianama founder and digital rights activist Nikhil Pahwa explained in a Twitter thread that for WhatsApp to enable identifying the originator of even one message, it has to re-architect the entire platform. “This potentially compromises all its users. The court will have to decide if it is proportionate to violate the privacy of everyone to identify one sender of a message,” wrote Pahwa.

The Centre had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in February. Social media intermediaries were given an additional window of three months to fall in line. “The petition has been rightly preferred, as requiring WhatsApp or other social media giants to identify the first originator of the message means breaking the end-to-end encryption.

This violates the fundamental rights of a citizen including privacy, freedom of speech and expression. It may have practical and technical difficulties as referred to as technical infeasibility in the petition. That will require every message to have metadata attached to it,” said cyber lawyer Ankur Raheja. He added a separate legislation may be needed on practicalities of various factors, and to ensure it does not violate fundamental rights.

Cyber law expert Pavan Duggal pointed out that WhatsApp challenging the rule on the ground of privacy violation represents an important step in the evolving cyberlaw jurisprudence in India. “India is carving out its own distinctive new legal jurisprudence on intermediaries by insisting on the criminal liability of such platforms. Hence, till such time the court doesn’t set aside or stay the operations of the rules, these rules will have to be complied with by all intermediaries,” said Duggal, on non-compliance that can lead to consequences, including intermediaries being liable for punishment.

The Internet Freedom Foundation, an NGO that conducts advocacy on digital rights and liberties, had pointed out the ‘troubling aspects’ of the rules. “This is severely detrimental to the fundamental rights of speech and privacy, since it will essentially undermine end-to end encryption and likely cause a chilling effect on speech in private conversations,” a May 24 post pointed out.