[WhatsApp plea against IT Rules 2021] Foreign commercial entity can't challenge Indian law: Centre to Delhi High Court

The Central government has told the Delhi High Court that a foreign commercial entity like WhatsApp cannot challenge the constitutionality of the Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)..The Centre has filed an affidavit to this effect before the High Court in response to WhatsApp's plea challenging Rule 4(2) of the IT Rules, 2021, which requires significant social media intermediaries to make provisions for identification of the first originator of information..In its affidavit running beyond 180 pages, the Centre has stated that both Articles 226 and 32 of the Indian Constitution are not available to a 'foreign', 'commercial 'entity for the purpose of challenging any Indian ;aw. The same principle would stand extended to Article 21, which is not applicable to artificial juristic much less commercial entities, the affidavit stated.As regards a challenge invoking Article 19, the rights of which are only available to citizens of India, the affidavit stated,"Law permits derivative action in cases of companies but the same can only be brought by an Indian Citizen who is also a shareholder of the company and is limited to Article 19 (1) (g) rights. The present petition where no derivative rights have been claimed by an Indian Citizen is thus not maintainable.".It was further contended:WhatsApp's plea should be dismissed as the Centre had legislative competence to introduce the Rules.The Rules are in conformity with the IT Act, 2000 and the Centre has not exceeded the limits conferred upon it by the parent Act.If the IT Rules, 2021 are not implemented, then law enforcement agencies will have difficulty in tracing the origin of fake messages and such messages will percolate to other platforms, thereby disturbing peace and harmony in the society, further leading to public order issues.IT Act empowers Centre to trace first originator of information pertaining to offences related to security of the State, public order, rape/child sexual abuse/sexually explicit material.Rule 4(2) aims at a legitimate State interest to curb the menace of fake news and offences committed against the State.Assertion that disclosure of first originator of information would break end-to-end encryption on platforms like WhatsApp is false.Rule 4(2) applies the least intrusive means to identify the first originator of information on these platforms and is to be availed if all other options fail..In August, the Delhi High Court had issued notice in the petitions filed by WhatsApp Inc and its parent company 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 had 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 was 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 had 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 identification of the first originator of information on end-to-end encrypted messaging services.