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Delhi High Court seeks Centre’s response on WhatsApp challenge to traceability clause in IT Rules

The plea alleges that the traceability clause imposes an unreasonable restriction on the right to freedom of speech and expression

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The Delhi High Court on Friday sought the Centre’s response in a plea of WhatsApp LLC challenging the ‘traceability’ clause contained in Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, notified by the Centre in February this year.

The Division Bench led by Chief Justice D.N. Patel and Justice Jyoti Singh issued notice in the petitions by WhatsApp LLC and its parent company Facebook Inc., and posted the matter for October 22, 2021. 

WhatsApp was represented by Senior Counsel Harish Salve, while Facebook Inc. was represented by Senior Counsel Mukul Rohatgi. The Centre, on February 25, 2021, notified the IT Rules, 2021. Rule 4(2) of the IT Rules, 2021, requires certain significant social media intermediaries, i.e., social media intermediaries with more than 50 lakh registered users in India, to enable the identification of the first originator of information in India on their platforms.

The case of the WhatsApp is that being a platform dedicated to creating a private and secure space where users can freely communicate through an end-to-end encrypted messaging and calling service, such a requirement as is imposed by the Centre undermines the privacy and security provided by the platform.  

“This breaks end-to-end encryption and the privacy principles underlying it, and impermissibly infringes upon users’ fundamental rights to privacy and freedom of speech,” claims WhatsApp in its plea.

Relying on the decision of the Apex Court in “K.S. Puttaswamy v. Union of India”, (2017) 10 SCC 1, the plea alleges that the said rule violates right to privacy of its users in as much as it eliminates the right of the hundreds of millions Indian citizens using WhatsApp to maintain the privacy of their messages, which is antithetical to end-to-end encryption and the core privacy principles underlying it.

The plea further alleges that the said rule imposes an unreasonable restriction on the right to freedom of speech and expression in as much as individuals will not feel safe to speak freely for fear that their lawful private communications will be used against them.

In addition, it alleges that the said rule is violative of the Parent Act, i.e. Information Technology Act, 2000, as it compels social media intermediaries to fundamentally alter their platforms; and is also ‘manifestly arbitrary’ in violation of Article 14 to the extent that the legislature never intended to give authority to make such rules.

Read Also: Supreme Court issues notice on plea of high court employees over uniform pay scales

The plea thus reads: “There is no law enacted by Parliament that expressly requires an intermediary to enable the identification of the first originator of information in India on its end-to-end encrypted platform or otherwise authorizes the imposition of such a requirement through rule-making. While Impugned Rule 4(2) seeks to impose such a requirement, the Impugned Rule is not a valid law as it is subordinate legislation, passed by a Ministry and not Parliament.”

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