Updated: August 28, 2021 8:45:56 am
DELHI HIGH Court on Friday asked the Centre to respond to WhatsApp’s petition challenging the 2021 IT Rules’ requirement of enabling the traceability of online messages.
The Facebook-owned company has said that requiring the intermediaries to enable identification of the first originator of information on their platforms could put journalists and activists at risk of retaliation in India and also infringe upon people’s fundamental right to freedom of speech and expression.
The division bench of Chief Justice D N Patel and Justice Jyoti Singh on Friday also issued a notice to the Centre in a similar petition filed by Facebook and listed the cases for hearing on October 22.
Representing the companies, Senior Advocate Mukul Rohatgi told the court that they have raised a “very serious question” in relation to the validity of a rule and the Centre should file a reply.
Rule 4(2) of the Intermediary Rules, which WhatsApp wants struck down, states that “a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required” by a judicial order or an order passed by a competent authority under the IT Act.
WhatsApp has argued that there is no way to predict which message will be the subject of such a tracing order. “Therefore, petitioner (WhatsApp) would be forced to build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever. 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,” it has contended.
It has also argued that protecting the privacy of the speaker is critical to protecting the right to freedom of speech and expression. “Indeed, privacy is inextricably intertwined with the right to freedom of speech and expression because it protects people from retaliation for expressing unpopular, but lawful, views. It encourages users to express their ideas and opinions, report unlawful activities, and challenge popular views without fear of reprisal, whereas enabling the identification of the first originator of information in India subverts privacy and discourages freedom of expression,” said the petition.
WhatApp has also argued that such requirement would put at risk of retaliation – journalists for investigating issues that may be unpopular; civil or political activists for discussing certain rights and criticising or advocating for politicians or policies, and also clients and attorneys could become reluctant to share confidential information “for fear that the privacy and security of their communications are no longer ensured”.
It contended that Rule 4(2) infringes upon the fundamental right to privacy without satisfying the three-part test set forth by the apex court in K S Puttaswamy vs Union of India on aspects of legality, necessity and proportionality.
“Impugned Rule 4(2) violates the fundamental right to freedom of speech and expression, as it chills even lawful speech. 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,” it said.