Today(on 25th April),Delhi High Court schedules August 14 hearing for WhatsApp and Facebook’s challenge against India’s 2021 IT rules, mandating chat tracing and originator identification. Acting Chief Justice Manmohan stresses the need for involved parties to argue, questioning if other countries adopted similar requirements.
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NEW DELHI: Today(on 25th April), The Delhi High Court has scheduled a hearing for August 14 on petitions from WhatsApp LLC and its parent company, Meta (formerly Facebook Inc), which are contesting the 2021 Information Technology (IT) rules aimed at social media intermediaries. These rules mandate the traceability of messages and require the platforms to identify the initial source of information.
During a session presided over by Acting Chief Justice Manmohan, the court recognized the need for comprehensive arguments from both parties involved. A point of interest raised was whether similar regulations exist globally.
“This rule does not exist anywhere else globally, not even in Brazil.”
-stated the attorney representing WhatsApp,
Emphasizing the global uniqueness of the rule and its infringement on user privacy, noting that it was implemented without prior consultation.
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Justice Manmeet P S Arora, who is also overseeing the case, remarked that although privacy rights hold significant value, they are not absolute and a balance must be achieved. The Central government’s counsel highlighted the importance of such rules, particularly when platforms are used to disseminate objectionable content that could incite communal violence.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, introduced on February 25, 2021, require major social media platforms like Twitter, Facebook, Instagram, and WhatsApp to adhere to these new standards. The current hearing was set to allow time for the consolidation of various other petitions challenging different facets of the 2021 IT Rules, following a directive from the Supreme Court.
During the proceedings, WhatsApp’s legal representative pointed out that measures have been implemented to control the virality of messages and that tracing the original sender of a message could traditionally be managed through the sequence of message senders.
“They’re demanding access to the entire technology. Is this proportionate? I’m caught in the middle.”
-he added, conveying the technical and ethical dilemmas posed by the rule.
The counsel also noted that all platforms would eventually need to comply with the upcoming data protection law, which will govern the collection, processing, and sharing of data.
In its 2021 petition, WhatsApp argued that the directive to enable identification of the first originator of information on government or judicial orders threatens the integrity of end-to-end encryption and jeopardizes the privacy of its users. WhatsApp LLC has requested the high court to deem Rule 4(2) of the intermediary rules unconstitutional, beyond the powers of the IT Act, and illegal, advocating that no criminal liability should be imposed on it for non-compliance with the rule.
The company has consistently maintained that the traceability provision violates the fundamental right to privacy, compelling them to undermine the encryption that ensures secure and private communication among its users. This requirement, according to WhatsApp, infringes not only on privacy rights but also on the freedom of speech.
Responding, the Centre defended the legality of the rule, asserting that it is designed to ensure a safer cyberspace and assist in curbing illegal content, fake news, and threats to national security and public order. It also suggested that if platforms are currently unable to trace origins without breaking encryption, they should develop mechanisms to do so as part of their public duty.
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Advocate Tejas Karia, representing the US-based company, highlighted that people choose to use the platform due to the privacy it ensures, particularly because messages exchanged on WhatsApp are end-to-end encrypted.
Karia told the bench-
“We assert that if mandated to compromise encryption, WhatsApp will cease to exist as a platform.”