Delhi High Court issues notice in WhatsApp, Facebook challenge to requirement under IT Rules 2021 to trace first originator

The Delhi High Court today issued notice in petitions filed by WhatsApp Inc and its parent company Facebook challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to the extent that it requires intermediaries to make provisions for identification of the first originator of the information (WhatsApp LLC v Union of India)..Notice was issued today by the Bench of Chief Justice DN Patel and Justice Jyoti Singh..When counsel for the Central government sought adjournment in the matter, Senior Advocate Mukul Rohatgi, appearing for WhatsApp, urged the Court to issue notice in the matter..The Court agreed to issued notice, returnable by October 22..Senior Advocate Harish Salve appeared for Facebook..The Rule under challenge, Rule 4(2), states:"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 passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form...".The messaging platform has argued that such a requirement under the IT Rules, 2021 is unconstitutional and against people’s fundamental right to privacy as underlined by the Supreme Court decision in Justice KS Puttaswamy v Union of India.It was also submitted that the provision goes against the concept of end-to-end encryption as it would force private companies to collect and store “who-said-what and who-shared-what” data for billions of messages daily, just for the requirement of law enforcement agencies.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 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.The petition also stated 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..Making messages traceable is against privacy, free speech; journalists and activists could be at risk: WhatsApp to Delhi High Court