IT Rules: Legal experts weigh in on reasonable curbs to Right to Privacy

Say the new rules do not pass the test of proportionality to justify breaching a user's privacy

The new IT rules do not pass the test of proportionality to justify breaching a user’s privacy, legal experts have said after the government on Wednesday argued that privacy was not an absolute right.

“The government’s assertion that traceability constitutes a reasonable restriction to the right to privacy fails the necessity and proportionality test, laid down by the Indian Supreme Court in the Puttaswamy judgment, to assess whether a restriction to the right to privacy is reasonable,” said digital rights organisation Access Now.

On Tuesday, WhatsApp filed a legal challenge against the Indian government as it took issue with a provision in the new social media rules that would require the messaging platform to break end-to-end encryption.

WhatsApp said in its petition that according to existing law, the three requirements of legality, need — defined in terms of a legitimate State aim — and proportionality had to be met to justify an intrusion into the fundamental right of privacy. These conditions flow from the Puttaswamy judgment.

“The traceability mandate imperils the human rights of millions of users for the mere possibility of identifying a few miscreants online. This possibility is slim because bad actors will swiftly shift to other platforms, or devise their own, whereas the public at large will be deprived of secure spaces online,” Access Now added.

WhatsApp has contended in its plea before Delhi High Court that the new IT rules would require messaging services to “trace” the origin of messages and undermine user privacy. The government, in a statement, said it was up to WhatsApp to ensure it helps trace the originator, while maintaining the privacy of users.

Under the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, significant social media intermediaries (SSMIs), or those with more than five million users, and providing messaging services will have to enable identification of the originator of problematic content that may harm the country’s interests and several other provisions. This is defined under Rule 4(2).

Prasanth Sugathan, legal director at Software Freedom Law Centre, India, said the rules were “violative of the law laid down in Justice K S Puttaswamy vs. Union of India (2017) and goes against the principles of proportionality, necessity, and minimisation”.

“Rule 4(2), in its current form, disregards the right to anonymity and encryption which are useful tools particularly for journalists, researchers, academics, citizens and even government officials. Its implementation will also seriously impinge upon the right to free speech of citizens and lead to self-censoring,” he added.

In a response to Twitter on Thursday, the Ministry of Electronics and Information Technology, which framed the new rules, reiterated that they “were finalised after widest possible consultations including with representatives of social media platforms. The Ministry of Electronics and IT put the draft rules in public domain and invited public comments”.

Access Now said the IT rules “in their current form are drastically different from the draft on which comments were invited in 2018, and well beyond what the executive branch can issue as subordinate rules without proposing a new bill to Parliament”.

The IT Rules, 2021, are being challenged in at least six other cases, besides the one involving WhatsApp.