On May 26, 2021, WhatsApp filed a lawsuit in Delhi High Court against the Indian government seeking to block regulations coming into force on May 26 that would compel Facebooks messaging app to break privacy protections.
The Indian government has argued that any operations being run in India are subject to the law of the land and has built the main argument on the following lines:
Indias new Intermediary Guidelines and Digital Media Ethics Code designates significant social media intermediaries as standing to lose protection from lawsuits and criminal prosecution if they fail to adhere to the code.
Big social media firms will appoint Indian citizens to key compliance roles, remove content within 36 hours of a legal order and set up a mechanism to respond to complaints.
Social media platforms will have to make sure that it can trace back messages of any person who had first sent it, in case a court of any competent authority seeks such information.
Cases where the information can be sought include those dealing with safeguarding the safety and security of India, prevent and punish the offenses of rape and prevent the publication of sexually explicit material etc.
WhatsApp has already broken the privacy code by asking its customers to allow it to share their data with Facebook. As per established judicial dictum, no fundamental rights including the right to privacy is absolute and is subject to reasonable restrictions.
WhatsApp arguments are based on technical and moral questions, the main reasons are:
It will break the end-to-end encryption and compel WhatsApp to breach privacy protection. Requiring messaging apps to trace chats is the equivalent of asking WhatsApp to keep a fingerprint of every single message sent on WhatsApp.
The traceability cannot be on a case-to-case basis; in order to trace one message the company will have to trace every message and the rule raises the spectre of A mass surveillance mechanism of 400 million WhatsApp users in India.
The Modi regimes effort to control the media stems from many factors, it has suffered badly in the Covid crisis as common people were able to post digital content on social media, which exposed the inefficiency and mismanagement of the government. New Delhi has pressed tech companies to remove what it has described as misinformation on the COVID-19 pandemic ravaging India.
A recent Bloombergs article suggests that India may end up somewhere between an authoritarian style firewall and a Western model of free internet. New Delhi will be able to ensure that digital platforms are popular but docile, amplifying the governments messages without questioning propaganda or exposing state hypocrisy.
While tech giants like Facebook and Google may boast of their love for freedom of expression, the Indian government has already forced them to appoint grievance officers. Facebook has fallen in line; Twitter Inc has asked for a three-month extension.
Bloomberg feels that in the name of a responsible internet and protecting citizens from data imperialists, several Indian business tycoons will be eager to abet the government in soft censorship. The Ambanies and Adanies may be the ultimate beneficiaries of these rules.
Pakistan has a few lessons to learn from India; the Indian state is not bothered about half a billion subscribers and the loss of revenue due to the annoyance of tech companies. The Indian law of the land takes precedence over everything, and when it comes to National Security and preventing chaos, India will put its foot down.
Adeela Naureen and Umar Waqar
The authors are freelance journalists. They can be reached at adeelanaure-en@gmail.com.
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