Taking note of deepfakes of Indian politicians floating around WhatsApp, the Indian government may be gearing up to direct the messaging platform to hand over the details of the user who first shared the content, The Indian Express reported today. Senior officials speaking to the paper added that video could “cause harm to electoral integrity in India,” which assumes significance in light of upcoming polls across the country.
Under what laws can such information be requested? The government may invoke a provision of India’s platform regulation rules—Rule 4(2) of the IT Rules, 2021. The rule requires platforms to identify and hand over details of the “first originator” of a piece of content to the government following an order. According to the Express, this may be the first time a platform will be issued a Rule 4(2) notice.
Speaking to the Express, MoS for IT Rajeev Chandrasekhar added that “the anonymous use of messaging platforms to propagate fake videos and audio is a major challenge we are grappling with. The traceability provision needs to be invoked to create some accountability and put brakes on this practice”.
Why it matters: In 2021, WhatsApp itself challenged the rules before the Delhi High Court, arguing that this “traceability” clause would compromise the platform’s end-to-end encryption, harming its users’ right to privacy.
“Impugned Rule 4(2) allows for the issuance of orders to identify the first originator of information in India without judicial oversight, let alone prior judicial oversight, which means there is no “guarantee against arbitrary State action”,” the petition had argued. “Impugned Rule 4(2) therefore should be struck down as it is an unconstitutional invasion of the fundamental right to privacy.”
Responding to the platform then, the Indian government said that it did not intend to violate privacy rights—but, at the same time, that the right to privacy wasn’t absolute, and that compliance with IT Rules was needed to support public interests.
Notably, the provision’s application was also recently stayed by the Tripura High Court. A trial court in the state had directed WhatsApp to reveal the first originator behind a fake resignation of Chief Minister Manik Saha circulating on the platform. Rule 4(2) also prescribes that traceability orders should only be issued on specific grounds, like protecting public order, among others. The Tripura High Court found that the lower court did not deal with the scale of “public order” threats posed by the message before issuing the traceability order (around two days after the filing of the initial FIR).
Appearing for WhatsApp during the proceedings, Senior Advocate Mukul Rohatgi added that Rule 4(2) was clear that “no order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information.”
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