The Delhi High Court on Friday sought response from the Centre on appeals filed by messaging platform WhatsApp and its parent corporation Facebook questioning the validity of the new Information Technology recommendations for social media intermediaries which needs the messaging app to “trace” chats and make provisions to determine the very first originator of data.
A bench comprising Chief Justice DN Patel and Justice Jyoti Singh issued notice to the Union government on an appeal filed by the corporation against the new Social Media Intermediary Rules, 2021, which came into impact from May 25. The case will be heard next on October 22.
Senior advocate Mukul Rohatgi, appearing for WhatsApp, objected to the adjournment sought by the counsel appearing for the government, saying even last time the matter got adjourned on the Centre’s request. “We are not asking for an interim order. Let notice be issued. It is a very serious issue raised in relation to validity of IT Rules, 2020,” he stated.
The new intermediary guidelines, which had been notified on February 25, are aimed at regulating all social media intermediaries like Twitter, Facebook, Instagram, Google, YouTube and so forth as as properly as more than-the-leading platforms like Netflix, Amazon Prime Video, and stand-alone digital media outlets. It was only for messaging platforms like WhatsApp that a new requirement was inserted which necessary it to provide the very first originator of what is deemed as mischievous messages by government which may possibly lead to law and order dilemma or threatens the country’s sovereignty, integrity, or friendly relations with neighbours.
WhatsApp as properly as Facebook have assailed these guidelines on the aspect of traceability and identification of very first originator of messages circulated on such platforms, saying the new guidelines would break correct to privacy of customers and finish-to-finish encryption on its service. Therefore, the contents of the exchanges on this platform can’t be traced by any party other than the sender and the receiver, they added.
In its plea, the corporation questioned criminal liability enforced upon its workers on failure to “trace” the origin of messages sent on the service, on an order by court or the government. “Identification of the first originator of a message under the new rules infringed upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely,” its petition stated.
WhatsApp also stated that that the guidelines “enables government officials, law enforcement, journalists, members of ethnic or religious groups, scholars, teachers, students, and the like to exercise their right to freedom of speech and expression without fear of retaliation”.
The corporation sought a path of the court to declare Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as unconstitutional and ultra vires of the IT Act, 2000, for violating the basic rights to equality, freedom of speech and carry on occupation. It relied upon the landmark ruling by apex court’s nine-judge bench in the correct to privacy case (K S Puttaswamy) amongst other individuals to help its plea.
The new IT Rules have been challenged just before many higher courts by distinct entities. Due to quantity of petitions difficult the guidelines, the Centre has moved the Supreme Court looking for transfer of all the circumstances associated to the new IT guidelines to the leading court so as to avert contradictory orders by higher courts. While the Supreme Court has agreed to hear the transfer petition, it has not so far restrained HCs from proceeding with their circumstances.