WhatsApp Conversations: A Legal Minefield?

A recent statement from the Police Commissioner’s Office has raised more questions than answers. The document warned that certain private WhatsApp conversations can be considered illegal, even if they are not publicly shared.

However, legal experts are arguing that conversations between two individuals cannot be considered a criminal offense.

According to the statement, individuals have been contacting others on WhatsApp, sending defamatory messages about public figures and their family members.

This practice is said to violate Section 46(ga) of the Information and Communication Technologies Act (ICTA), which states that using technology to send, transmit, or publish a message that is obscene, indecent, offensive, abusive, threatening, intimidating, false, or misleading, and capable of causing harm to a person, is a criminal offense punishable by a fine not exceeding Rs 1,000,000 or imprisonment for up to 10 years.

One of the major concerns raised by this aspect of the law is the ability of the justice system to determine whether an online publication actually causes “distress,” “humiliation,” “inconvenience,” “deterioration,” or “anxiety” to a person.

The terms used are so broad and subjective that they could easily be interpreted excessively, leading to unjustified prosecutions and potentially restricting freedom of expression.

Experts and digital rights defenders argued that these amendments could have a chilling effect on online expression.

Me Ashok Radhakissoon, a former president of the ICTA, added that it is essential to distinguish between a private conversation between two individuals and public statements.

“If it’s a private conversation between two people, where is the offense?” he asked.

Radhakissoon noted that the section in question refers to causing “distress” to a person. As long as the message in question has not been made public, there cannot be “distress.”

He also pointed out that the original law stipulated that the offense must be concrete for the offense to be present.

Subsequently, the law was amended to include “likely to cause annoyance,” making it easier to apply.

Furthermore, Radhakissoon emphasized that all messages can be monitored. “Even encrypted ones. There are tools for that. It’s not easy to get them, but some institutions may have them,” he said.

Therefore, can private conversations be monitored and used against two individuals? No, he responded. There must always be an element of public involvement.

The controversy surrounding this aspect of the law raises questions about the limits of freedom of expression online and the potential for unjustified prosecutions.

As the debate continued, it is essential to ensure that individuals are protected from harm while also preserving their right to express themselves online.

Source: l’Express