WhatsApp plea in Delhi High Court says new social media intermediary rules 'unconstitutional'

Express News Service
NEW DELHI:  Facebook-owned WhatsApp on Tuesday moved the Delhi High Court against the new rules for digital media companies issued by the Centre, saying these laws infringe upon the right to privacy and free speech of its users and that the company will have to break end-to-end encryption to comply, The new rules require messaging platforms such as WhatsApp to enable identification of the “first originator” of information that undermines sovereignty of India, security of the state, or public order. 

In its 234-page plea, the social media giant cautioned that traceability can be spoofed or modified, leading to new ways for people to be framed for things they did not say or do.  “Citizens will not speak freely for fear that their private communications will be traced and used against them. We are not aware of any country that requires intermediaries to do this,” the plea stated.

WhatsApp has challenged Section 4 of Part II of the rules that were notified on February 25. The Section says that a ‘significant social media intermediary’ (social media companies with more than 50 lakh registered users) primarily providing messaging services must enable the identification of the first originator of the information. 

“Supreme Court has emphasised the importance of judicial review before the invasion of privacy occurs to guarantee against arbitrary action by the State (Puttaswamy judgment). The new IT Rules allow message tracing without any judicial review,” the petition stated. The petition also flagged the risk journalists and activists will face.

“Journalists could be at risk of retaliation for investigating issues that may be unpopular. Activists could be at risk for discussing certain rights and criticising politicians or policies. Clients and lawyers could become reluctant to share confidential information related to their case,” the petition said. The plea was moved a day after the deadline for social media companies to put in place new mechanisms to comply with the rules. 

Legal points 

WhatApp says Rule 4(2) of the Intermediary Rules is unconstitutional

It also says traceability provision is unconstitutional and against the fundamental right to privacy

It will force WhatsApp to break  end-to-end encryption and put the privacy of journalists and  activists at great risk 

Centre says right to privacy comes with certain reasonable restrictions

Non-compliance of the new IT rules will result in social media firms losing their ‘intermediary’ status, which offers protection from liabilities for any third-party information hosted by them