India high court issues notice to government in WhatsApp challenge against new technology rules

The Delhi High Court issued a notice to the Indian central government on Friday, seeking a reply to WhatsApp’s challenge against the new Information Technology Rules which were created by the government in February 2021. Tech companies have challenged the constitutionality of Rule 4(2) and related provisions requiring social media intermediaries to identify the first originator of information shared on their platforms upon request by government authorities.

WhatsApp had first brought its petition before the high court in May, arguing that tracing the first originator would violate end-to-end encryption and require private companies to collect and store data for billions of messages by their users on a daily basis. This requirement does not satisfy the threefold test of legality, necessity, and proportionality established by the Supreme Court in KS Puttaswamy v Union of India. It would consequently violate their right to privacy, which is a fundamental right under Article 21 of the Indian Constitution.

WhatsApp also contended that breaking end-to-end encryption would have a chilling effect on free speech, even in the private lives of people, as “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.” People in public life, such as journalists, civil and political activists, critics of the government, whistleblowers etc. would especially be at risk.

Although the Indian government has not yet filed its reply in court, it has responded in a press release stating that the right to privacy and right to freedom of speech are both subject to reasonable restrictions under the Constitution. It further asserted that the rules are reasonable and necessary to protect the public interest as well as maintain law and order.

Over the years, India has witnessed an increase in cases of mob lynching and riots arising due to fake news being widely shared on social media. Investigative agencies, and sometimes even courts, have thus often sought the help of social media intermediaries to trace the origin of “provocative and nefarious” online messages that caused violence and crime. However, these intermediaries have been reluctant owing to privacy concerns of their users. This challenge to the IT Rules may be the path to arriving at a middle ground. The next hearing for this matter is listed on 22 October.