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If WhatsApp can comply with European laws, why not with India’s IT Rules: PIL in Kerala HC

A petition was filed in Kerala High Court on Tuesday seeking a ban on WhatsApp if it continues to disregard the rules of the country and not cooperate with the government. Petitioner Omanakuttan KG, a software professional, alleged that WhatsApp has not yet conformed to the traceability mandate of the Information Technology (IT) Rules, 2021, posing a potential threat to national interest and national security.

The PIL was admitted on Wednesday before the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P Chaly and is scheduled for the next hearing on Monday (28 June).

Where does Whatsapp stand in compliance with the rules?

The IT Rules, 2021 went into effect on May 25 and, among other things, it requires platforms like WhatsApp to:

  • appoint a nodal contact person, chief compliance officer, and resident grievance officer whose contact details are prominently displayed on the website
  • enable tracing the originator of a message (traceability mandate)

While WhatsApp was not compliant with these rules on the day they went into effect, it eventually appointed people to the three required managerial roles and shared the details of the grievance officer on its website. However, it is yet to comply with the traceability mandate against which it has filed a lawsuit in Delhi High Court. WhatsApp argues that the traceability mandate will require the platform to break end-to-end encryption for all its users, which will violate the users’ right to privacy and freedom of speech and expression and is beyond the scope of the parent Act. In addition to asking the court to declare the traceability provision as unconstitutional, WhatsApp has asked for interim relief.

What does the Kerala HC petition argue?

According to LiveLaw, the petition filed by Omanakuttan argues the following:

Criminals who cause unrest in society can walk scot-free: The petitioner argued that the messages and media shared on the platform can be manipulated by a layman to cause unrest in society, but since traceability is not enabled, any criminal or antinational using the app to cause unrest in society cannot be identified by law enforcement agencies. Additionally, the petitioner claimed that WhatsApp lacks security and has been exposed to several bugs over time. “If the app was not willing to change its technology and did not cooperate with the government, it should not be allowed to operate in the country,” the petitioner said.

Abides by European law, why not Indian? The petitioner argued that WhatsApp complies with European laws and has implemented a separate privacy policy in Europe in compliance with the laws there. “If the app is amenable to laws of the European region and can change its functionality in accordance with the laws of the European region; why is it hesitant to abide by the laws of our country?” the Economic Times quoted the petitioner as asking. The petitioner also asked if corporate entities can bypass laws in the country based on false claims.

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WhatsApp already violates privacy: While WhatsApp claims that complying with rules will break privacy protections, the petitioner argues that WhatsApp’s new privacy policy already violates privacy because the app collects and shares a lot of information. This new privacy policy is currently under investigation by the Competition Commission of India because of its new data sharing policy with Facebook.

Violation of Article 21: Advocates M Vivek, Arun Ashok Iyyani, and Neena James, who appeared as the counsel for the petitioner, argued that the app violated the fundamental rights of the citizens guaranteed under Article 21 of the Constitution. Article 21 states that “no person shall be deprived of his life or personal liberty.” The petition asks if an app causing a potential threat to the sovereignty, integrity, and security of the nation and its citizens can be allowed to function.

Similar apps banned in the past: The petitioner stated that similar apps that posed a threat to national interests were banned in the past and if WhatsApp fails to cooperate with the government then a similar step should be taken. The petitioner is likely referring to the Chinese app ban enacted last year.

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