WhatsApp also said that that the rules "enables government officials, law enforcement, journalists, members of ethnic or religious groups, scholars, teachers, students, and the like to exercise their right to freedom of speech and expression without fear of retaliation".
The Delhi High Court on Friday sought response from the Centre on appeals filed by messaging platform WhatsApp and its parent company Facebook questioning the validity of the new Information Technology guidelines for social media intermediaries which requires the messaging app to “trace” chats and make provisions to identify the first originator of information.
A bench comprising Chief Justice DN Patel and Justice Jyoti Singh issued notice to the Union government on an appeal filed by the company against the new Social Media Intermediary Rules, 2021, which came into effect from May 25. The case will be heard next on October 22.
Senior advocate Mukul Rohatgi, appearing for WhatsApp, objected to the adjournment sought by the counsel appearing for the government, saying even last time the matter got adjourned on the Centre’s request. “We are not asking for an interim order. Let notice be issued. It is a very serious issue raised in relation to validity of IT Rules, 2020,” he said.
The new intermediary rules, which were notified on February 25, are aimed at regulating all social media intermediaries like Twitter, Facebook, Instagram, Google, YouTube etc as as well as over-the-top platforms like Netflix, Amazon Prime Video, and stand-alone digital media outlets. It was only for messaging platforms like WhatsApp that a new requirement was inserted which required it to provide the first originator of what is deemed as mischievous messages by government which may lead to law and order problem or threatens the country’s sovereignty, integrity, or friendly relations with neighbours.
WhatsApp as well as Facebook have assailed these rules on the aspect of traceability and identification of first originator of messages circulated on such platforms, saying the new rules would break right to privacy of users and end-to-end encryption on its service. Therefore, the contents of the exchanges on this platform cannot be traced by any party other than the sender and the receiver, they added.
In its plea, the company questioned criminal liability enforced upon its employees on failure to “trace” the origin of messages sent on the service, on an order by court or the government. “Identification of the first originator of a message under the new rules infringed upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely,” its petition stated.
WhatsApp also said that that the rules “enables government officials, law enforcement, journalists, members of ethnic or religious groups, scholars, teachers, students, and the like to exercise their right to freedom of speech and expression without fear of retaliation”.
The company sought a direction of the court to declare Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as unconstitutional and ultra vires of the IT Act, 2000, for violating the fundamental rights to equality, freedom of speech and carry on occupation. It relied upon the landmark ruling by apex court’s nine-judge bench in the right to privacy case (K S Puttaswamy) among others to support its plea.
The new IT Rules have been challenged before various high courts by different entities. Due to number of petitions challenging the rules, the Centre has moved the Supreme Court seeking transfer of all the cases related to the new IT rules to the top court so as to prevent contradictory orders by high courts. While the Supreme Court has agreed to hear the transfer petition, it has not so far restrained HCs from proceeding with their cases.