Delhi HC to hear in Aug pleas of FB, WhatsApp challenging new IT Rules

The Delhi High Court Friday said it will hear on August 27 the pleas by Facebook and WhatsApp challenging the new IT rules for social media intermediaries requiring the messaging app to lsquotracersquo chats and make provisions to identify the first originator of information on the ground that they violate the right to privacy and are unconstitutionalA bench of Chief Justice D N Patel and Justice Jyoti Singh listed the matter for August 27 after Solicitor General Tushar Mehta representing the Centre said he was in some difficulty and urged the court to adjourn the hearingThe request was not opposed by senior advocates Harish Salve and Mukul Rohatgi appearing for WhatsApp and Facebook respectivelyThe new Information Technology Intermediary Guidelines and Digital Media Ethics Code Rules 2021 were announced by the government on February 25 and requires large social media platforms like Twitter Facebook Instagram and WhatsApp to comply with the norms by May 25The Facebook owned WhatsApp in its plea said the requirement of intermediaries enabling the identification of the first originator of information in India upon government or court order puts endtoend encryption and its benefits at riskWhatsApp LLC has urged the high court to declare Rule 42 of the Intermediary Rules as unconstitutional ultra vires to the IT Act and illegal and sought that no criminal liability be imposed on it for any alleged noncompliance with Rule 42 which requires to enable the identification of the first originator of informationWhatsApp which has arrayed the Centre through the Ministry of Electronics and Information Technology as a party to the petition said the traceability provision is unconstitutional and against the fundamental right to privacyThe plea said the traceability requirement forces the company to break endtoend encryption on its messaging service as well as the privacy principles underlying it and infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securelyIt said WhatsApp 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 retaliationldquoWhatsApp also allows doctors and patients to discuss confidential health information with total privacy enables clients to confide in their lawyers with the assurance that their communications are protected and allows financial and government institutions to trust that they can communicate securely without anyone listening to their conversationsrdquo it saidldquoThere is no way to predict which message will be the subject of such a tracing order Therefore the petitioner would be forced to build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever This breaks endtoend encryption and the privacy principles underlying it and impermissibly infringes upon usersrsquo fundamental rights to privacy and freedom of speechrdquo the petition saidIt claimed that Rule 42 infringes upon the fundamental right to privacy without satisfying the threepart test set forth by the Supreme Court in K S Puttaswamy judgement that is legality necessity and proportionalityIt also said that the rule violates the fundamental right to freedom of speech and expression as it chills even lawful speech and citizens will not speak freely for fear that their private communications will be traced and used against them which is antithetical to the very purpose of endtoend encryptionRule 42 states that a significant social media intermediary which provides services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial or government orderAs per data cited by the government India has 53 crore WhatsApp users 448 crore YouTube users 41 crore Facebook subscribers 21 crore Instagram users while 175 crore account holders are on microblogging platform TwitterThe new rules were introduced to make social media platforms like Facebook WhatsApp Twitter and Instagram which have seen a phenomenal surge in usage over the past few years in India more accountable and responsible for the content hosted on their platformSocial media companies will have to take down posts depicting nudity or morphed photos within 24 hours of receiving a complaintNotably the rules require significant social media intermediaries providing services primarily in the nature of messaging to enable identification of the first originator of the information that undermines sovereignty of India security of the state or public orderThis could have major ramifications for players like Twitter and WhatsAppThis story has been sourced from a third party syndicated feed agencies Midday accepts no responsibility or liability for its 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