‘ Whatsapp used for its encryption, will have to break it to implement IT Rules’

THE DELHI High Court on Thursday listed in August Whatsapp and Meta’s ( formerly Facebook) 2021 petitions challenging a provision of the 2021 Information Technology Rules for social media intermediaries, requiring them to identify the first originator of information.

The messaging app and the parent company have challenged Rule 4( 2) of the 2021 IT ( Intermediary Guidelines and Digital Media Ethics Code) Rules which requires “significant social media intermediaries” providing primarily messaging services to “enable the identification of the first originator of the information”, which may be required by a court order or an order of the competent authority, as per the IT ( Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009.

The counsel appearing for Whatsapp submitted before a division bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora that the said rule requires “consideration”. “People use Whatsapp only because of its encryption. Now by implementing this rule, we will have to break the encryption. Otherwise, it won't be possible to trace the originator. Billions and billions of messages may have to be stored for ‘ n’ number of years, because there is no limit here,” according to the counsel.

The counsel added: “There are two rights. One is privacy. At the same time, the government has a right to know... for instance, if a terrorist is sending a message, he has to be caught. We are caught in between. Whether I should break my platform for one of the instances or for billions of instances. Is it proportionate? That has to be considered. The court will have to examine the constitutional validity of this rule. There is nothing in the Information Technology Act which allows the government to make this rule.”

“This will have to be argued,” said the bench.

As the counsel said that the Supreme Court's decision in the Puttaswamy case states that the right to privacy is a fundamental right and that this rule breaches privacy, according to the platform, the bench orally said that the fundamental rights are also “not absolute”.

The petitioner's counsel also informed the bench that the SC on March 22, 2024, had transferred a large number of similar matters pending before different HCS across the country to the Delhi HC. He said that the pleas may be tagged with petitions that will come before the Delhi HC, and the matter be heard together as a batch, so that an analogous order is passed.

The bench, thereafter, listed the matter on August 14 to await the transfer of all other petitions.

Before parting, the bench asked whether a similar issue has been taken up anywhere else across the world, to which, the petitioner’s counsel said: “There is no such rule anywhere else in the world. Not even in Brazil.”