The Indian government on Wednesday said that WhatsApp's "last minute challenge" to the new social media and intermediary guidelines, all clauses of which came into effect on 25 May , is a "clear act of defiance" and an "unfortunate attempt to keep the guidelines from coming into effect".
"WhatsApp's challenge, at the very last moment, and despite having sufficient time and opportunity available during the consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect," the ministry said in a statement.
"Any operations being run in India are subject to the law of the land. WhatsApp's refusal to comply with the guidelines is a clear act of defiance of a measure whose intent can certainly not be doubted," it added.
A ministry official familiar with the matter said that the sections wherein the government is likely to seek the information are clearly defined in the new guidelines.
"It is only in cases where serious crime has taken place, or are in the interest of national security, that such information will be sought and that too with the approval of the home secretary," the official said.
The government in its statement said that an order to trace first originator, under Rule 4(2) of the said guidelines, shall be passed "only for the purposes of prevention, investigation, punishment etc. of inter alia an offence relating to sovereignty, integrity and security of India, public order incitement to an offence relating to rape, sexually explicit material or child sexual abuse material punishable with imprisonment for not less than five years".
It highlighted how WhatsApp messages have been circulated when it came to cases of mob lynchings. "It is in public interest that who started the mischief leading to such crime must be detected and punished. We cannot deny as to how in cases of mob lynching and riots etc. repeated WhatsApp messages are circulated and recirculated whose content are already in public domain. Hence the role of who originated the message is very important," the statement said.
The Indian government's response came barely hours after the instant messaging platform moved Delhi high court against the new guidelines, stating that the rule to trace the first originator violates the fundamental right to privacy, is "unconstitutional" and "illegal".
HT on Tuesday reported that WhatsApp, Facebook and Twitter were among the significant social media intermediaries that were yet to comply with the government's new guidelines and make three key appoints — that of a compliance officer, a resident grievance officer and a nodal contact person. The new guidelines state that any intermediary with 5 million or more users may lose its safe habour status if it fails to observe them.
"As a significant social media intermediary, WhatsApp seeks a safe harbour protection as per the provisions of the Information Technology Act. However, in a befuddling act, they seek to avoid responsibility and refuse to enact the very steps which permit them a safe harbour provision," the Indian government statement added.
The government also stated that while it respects the right to privacy and has no intention of violating it, no Fundamental Right, including the Right to Privacy, is absolute. "It is subject to reasonable restrictions. The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction," the statement said.