WhatsApp troubles in its biggest market continue to mount up as the Indian government is announcing a new set of media regulations that would compel the popular messaging app to break privacy protections.
According to the new regulation, social media companies will be required to identify the “first originator of information” when authorities demand it.
Although the law only requires it in the case of people that have been credibly accused of wrongdoing, the Facebook-owned company says it can’t do it without breaking its lauded end-to-end encryption.
WhatsApp explained that because its messages are end-to-end encrypted, it would have to break encryption for receivers and “originators” of messages to comply.
Other rules in the code include the requirement that big social media firms appoint Indian citizens to key compliance roles and remove content within 36 hours of a legal order.
They must also set up a mechanism to respond to complaints and use automated processes to take down pornography.
WhatsApp goes to court
In an attempt to block the regulation, WhatsApp has filed a legal complaint against the Indian government in the country’s capital, Delhi
According to the suit, WhatsApp is asking the Delhi High Court to declare that one of the new rules is a violation of privacy rights in India’s constitution.
WhatsApp has nearly 400 million users in India
This latest tussle escalates a growing struggle between the Indian government and WhatsApp in its biggest market.
The company was recently given a one-week ultimatum to revoke its updated privacy policy or face sanctions under the country’s laws.
WhatsApp risks social media immunity
Although WhatsApp has filed a lawsuit, there’s no information as to when it will be reviewed by the court. While the verdict is pending, WhatsApp will have to decide whether to comply or disobey the law that is going into effect.
If it decides not to comply, it may lose the protection from lawsuits and criminal prosecution provided to social media companies in Indian law.
The Intermediary Guidelines and Digital Media Ethics Code promulgated by India’s ministry of information technology states that “significant social media intermediaries” stand to lose protection from lawsuits and criminal prosecution if they fail to adhere to the code.
However, WhatsApp stands a fair chance of the lawsuit turning out in their favour. The company pointed out that the 2017 Indian Supreme Court ruling supporting privacy in a case known as Puttaswamy is a good and valid precedent.
In the Puttaswamy case, the court had ruled that privacy must be preserved except in cases where legality, necessity and proportionality all weighed against it. WhatsApp believes that this new law fails all three of those tests, starting with the lack of explicit parliamentary backing.
WhatsApp end-to-end encryption in Jeopardy
WhatsApp has invested heavily in India and its efforts have been rewarded with impressive adoption in the country. However, all this can be put in jeopardy by this heavy-handed regulation by the Indian government.
If the Media Law is implemented, the Facebook-owned company would be forced to comply. This would practically spell the end of its highest-selling and most unique offering of end-to-end encryption.
However, this may not stop within the borders of India. For years, many governments have been trying to make regulations to break through social media’s security wall.
A quick reminder is the Social Media bill that was suggested in Nigeria in 2019.
A successful bypass by the Indian government could mean that other governments would follow suit and demand access. This in turn results in a zero guarantee of safety and security for user data and chats. The summary is your secret is no longer secret.
Other social media companies react
WhatsApp is not the only company that has faced the ire of the Indian government. Twitter recently suffered the embarrassment of an Indian police visit at its office after labelling posts by a spokesman for the dominant party and others as containing “manipulated media”.
In general, the response of companies to the new rules has varied from silence to partial acceptance.
Facebook says it agrees with most of the provisions but is still looking to negotiate some aspects. Twitter, on its part, hasn’t made any comments.
In summary
While other social media companies can work around India’s new rule, WhatsApp end-to-end encryption puts them in a tight spot.
The company can’t necessarily threaten to pull out as Google did in Australia because India is its biggest market and a potential market for its new WhatsApp Pay.
However, bending to the government rules may have more devastating consequences as trust levels are still low after the blowback of the new privacy policy.
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