WhatsApp moves HC against IT rules, says tracing info about originator is against fundamental rights 

Refusing to come under pressure from the Government to embrace its new rules even a day after expiry of the deadline,  Facebook-owned WhatsApp on Wednesday challenged the provision of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

WhatsApp contended that tracing the originator of fake news and objectionable messages are against the right to privacy of individuals and their fundamental right to freedom of speech and expressions.

Tracing the messages to find the originator as per the Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is totally and unreasonably against the rights given to citizens by Indian Constitution, said WhatsApp in their petition, adding that the new rules are against the company’s end-to-end encrypted platform.

In the petition, WhatsApp apprehended that such a system could put journalists at risk of retaliation for investigating issues that may be unpopular.

Moreover, civil or political activists could face the heat for discussing certain rights and criticising or advocating for politicians or policies. Clients and attorneys could become reluctant to share confidential information for fear that the privacy and security of their communications is no longer ensured, WhatsApp has said.

Former Telecom IT Minister Kapil Sibal and noted lawyer Arvind Datar are presently representing WhatsApp in courts and they are expected to argue in this case also.

“With end-to-end encryption, users feel safe to communicate freely...Once citizens become aware that SSMIs have built the ability to identify the first originator of information in India on their end-to-end encrypted messaging services, individuals will not feel safe to speak freely for fear that their lawful private communications will be used against them, thereby infringing their rights to privacy and free speech,” said the petition.

The messaging company WhatsApp LLC has submitted that the rule on traceability violates the fundamental rights to privacy and freedom of speech and expression guaranteed under Articles 19 and 21 of the Constitution of India, and Sections 69A and 79 Information Technology Act, 2000.

In its challenge to Rule 4(2) of the Intermediary Guidelines, which requires intermediary platforms to make provisions for “identification of the first originator of the information”, WhatsApp has argued that the provision is manifestly arbitrary and disproportionate as the harm it causes far outweigh its purported benefits.

Forcing the platform to build the ability to identify the first originator of information in India would infringe upon the privacy of every individual who uses WhatsApp in India, the company has argued.

It is further contended that the rule falls foul of the three-fold test of legality, necessity and proportionality laid down by the Supreme Court in KS Puttaswamy Vs Union of India, famously known as Aadhar case.

WhtasApp also pointed out that that the rule violates Sections 69A and 79(2) of the Information Technology Act, which defines the scope of the Centre’s authority.

The international messaging company now owned by Facebook  has explained that although Section 69A(2) inter alia empowers the Central Government to prescribe procedures to block access, determination of the first originator of information in India on end-to-end encrypted platforms is in excess of that power.

“Section 79 only allows respondent to prescribe the “due diligence” guidelines that intermediaries must observe to maintain their exemption from liability for third-party content on their respective platforms. However, Impugned Rule 4(2) seeks to impose obligations that fall far outside “due diligence”, as it forces fundamental alterations to WhatsApp by breaking end-to-end encryption and changing the fundamental nature of the service that people love and use today in India and across more than 100 countries,” said WhatsApp, adding that no other country compels intermediaries to change their systems to enable the identification of the first originator of information on end-to-end encrypted messaging services.

Imposing criminal liability for non-compliance of a rule that is unconstitutional is also illegal, said WhatsApp. The petition said traceability would it to “turn over the names of people who shared something even if they did not create it, shared it out of concern, or sent it to check its accuracy”.

It is apprehended that “innocent people could get caught up in investigations, or even go to jail, for sharing content that later becomes problematic in the eyes of a government, even if they did not mean any harm by sharing it in the first place”.

WhatsApp has said such an approach would also have “chilling effect on what people say even in private settings, violating universally recognised principles of free expression and human rights”.