The Kerala High Court has issued a stay on summons directed at WhatsApp’s India representative concerning the disclosure of information regarding the first originator of messages. WhatsApp challenged the summons issued by the Magistrate Court, citing Rule 4(2) of the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules 2021, and arguing that the rule should be deemed unconstitutional. The High Court sided with WhatsApp, asserting that Rule 4(2) cannot be invoked for offenses punishable by less than five years in jail. This decision raises questions about privacy, freedom of speech, and the constitutionality of IT regulations.
Kerala: On Tuesday, (20th February), the Kerala High Court issued a stay on a previous order from a lower court that had called for a representative from WhatsApp India to appear and disclose information about the initial sender of specific messages, following a complaint lodged by a female politician. She claimed these messages were offensive and had damaged her reputation in the political sphere.
The court, led by Justice Bechu Kurian Thomas, sided with WhatsApp’s argument that since the alleged offense carries a potential punishment of less than five years of imprisonment, Rule 4(2) should not apply, leading to the stay of the magistrate’s order.
The appeal against this directive was brought before the High Court by WhatsApp, contesting the magistrate court’s decision dated November 20, 2023, which was based on Rule 4(2) of the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules 2021 (IT Rules 2021).
WhatsApp’s challenge to the order also included a plea to declare Rule 4(2) unconstitutional on various fronts. This rule requires significant social media intermediaries that offer messaging services to identify the original sender of a message when ordered by a court.
Representing WhatsApp were attorneys Tejas Karia, Swati Agarwal, Shashank Mishra, Akshi Rastogi, Thomas P Kuruvilla, and P Prijith, who successfully argued the case before the Kerala High Court.
WhatsApp contended that the magistrate should not have issued such an order given the pending challenges and argued that even if the order were deemed valid, it would still face constitutional issues and raise significant legal questions.
WhatsApp’s petition argued that Rule 4(2) infringes upon the constitutional rights to privacy and freedom of speech, exceeds the boundaries of the Information Technology Act, and is conspicuously arbitrary, violating Article 14 of the Constitution.
The petition also noted that the challenge against the IT Rules is still under consideration in various High Courts, including the Delhi High Court, where WhatsApp has raised a similar challenge.