Delhi HC notice to Centre over WhatsApp, FB petitions against the new IT rules
The Delhi high court on Friday sought the Centre’s response to pleas by WhatsApp and Facebook challenging the new Information Technology Rules, 2021, specifically the “traceability” provision.
A bench of chief justice DN Patel and justice Jyoti Singh issued a notice asking the Centre, through the ministry of electronics and information technology (MeitY), to file a reply on the petition for a stay on the implementation of the rules.
Appearing for the Centre, its counsel sought an adjournment saying that the main counsel in the matter was not available. This, however, was opposed by senior advocates Harish Salve and Mukul Rohatgi, appearing for WhatsApp and Facebook, respectively. They said that the Centre should at least file their replies to the petition.
The court, while issuing notice, posted the matter for hearing on October 22.
In May, WhatsApp moved the high court challenging the IT rules saying that the provision of “traceability” is a violation of the right to privacy according to Indian law. The Facebook-owned messaging service has said that the concept is contrary to the end-to-end encryption policy designed to ensure that messages were strictly private. It said that “traceability” would reveal to whom the message was sent.
WhatsApp has urged the high court to declare Rule 4(2) of the Intermediary Rules as unconstitutional, ultra vires to the IT Act and illegal, and sought that no criminal liability be imposed on it for any alleged non-compliance with Rule 4(2) which requires enabling the identification of the first originator of information.
The Union government had, however, defended the rules.The government had also stated that while it respects the right to privacy, no fundamental right, including the right to privacy, is absolute.
WhatsApp has also contended that “traceability would not be effective in finding the originator of a particular message because people commonly see content on websites or social media platforms and then copy and paste them into chats”. It said that it would also be impossible to understand the context of how it was originally shared.
WhatsApp has said that it does not believe traceability can be imposed in a way that cannot be spoofed or modified, leading to new ways for people to be framed for things they did not say or do. It added that such massive data collection also makes messaging platforms inherently less secure by opening up more avenues for hacking.
The plea said the traceability requirement forces the company to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely.
It said WhatsApp 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.
It said the rule violates the fundamental right to freedom of speech and expression as it chills even lawful speech and citizens will not speak freely for fear that their private communications will be traced and used against them, which is antithetical to the very purpose of end-to-end encryption.
Facebook has also filed the plea seeking similar relief.