WhatsApp’s Case Against The Indian Government

The 224-page petition by the company said the requirement will result in WhatsApp having to deploy the ability to identify the first originator for every message which is sent on the platform as one cannot predict which message will be subjected to the tracing order.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 add a number of new compliance requirements for intermediaries such as social media platforms like Twitter and messaging apps like WhatsApp, including to identify the first originator of the information circulating on the app on grounds of:

• Prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the state, friendly relations with foreign states.
• Public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.

WhatsApp filed its petition against the requirement on May 25, the same day the three-month deadline set by the government for complying with the rules expired.

In the petition, WhatsApp has cited three main reasons for challenging the traceability requirement.

In a nine-judge bench ruling in 2017, the Supreme Court of India recognised privacy as a fundamental right and held that any restriction on the right has to pass the three-point test of legality, necessity and proportionality.

WhatsApp says the rules do not pass this test. There is no law that requires intermediaries to identify the originator of any information and nor does any law currently allow framing of rules which can impose such a requirement upon them, it said.

WhatsApp says the right to privacy judgment also mandates a judicial review before any action that infringes on privacy is implemented. However, the rules do not allow for any judicial review before the tracing order is issued.

The rules also fail the test of proportionality, according to the petition. The company argues that it will be forced to build the ability to identify the originator of every message which will break end-to-end encryption.

As per the IT Rules, the order to identify the source of information can be issued by the government or a court. The government has taken the stance that such an order will be issued only as a last resort and has adequate legal safeguards.

In the petition, WhatsApp says the Rules will have a chilling effect on lawful speech, which is a violation of the fundamental right to speech and expression guaranteed under the Indian Constitution.

The company says citizens won’t be able to freely communicate on the platform as there will be a fear that their communication will be traced and can be used against them at any time in the future.

This is antithetical to the very purpose of the idea of end-to-end encryption, the petition says.

Section 79 of the Information Technology Act grants immunity to intermediaries such as WhatsApp, Twitter and others from liabilities of any third party information posted on their platforms. The section also requires the intermediaries to follow due diligence and adhere to the government guidelines framed by the government in this regard.

But the petition by WhatsApp says that Section 79 in no way allows the government to frame a requirement to identify originators and that too at the expense of changing the fundamental nature of the intermediaries platform.

The company says the rules also do not comply with the object of the IT Act, whose preamble says the intent of the law is to achieve uniformity of the law with other countries.

There is no other country which requires the intermediary to identify the originator of a message on an end-to-end encrypted platform at the cost of fundamentally changing the platform, says the petition.

The petition has not yet come up for hearing in the Delhi High Court. When the case is taken up for hearing, the company will request the court to declare the rule on originators as illegal and bar any criminal liability to be imposed for any alleged non-compliance to the rule.