WhatsApp Moves Delhi High Court Against IT Rules 2021

After online news portals, WhatsApp approaches court against IT Rules 2021.

People are seen as they check mobile devices whilst standing against an illuminated wall bearing WhatsApp Inc.’s logo. (Photographer: Chris Ratcliffe/Bloomberg)
People are seen as they check mobile devices whilst standing against an illuminated wall bearing WhatsApp Inc.’s logo. (Photographer: Chris Ratcliffe/Bloomberg)

WhatsApp, the Facebook-owned messaging platform, has moved the Delhi High Court challenging the information technology rules that could dilute its ‘end-to-end encryption’ protection granted to users.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 add a number of new compliance requirements on tech companies, including messaging apps like WhatsApp, to identify first originator of the information circulating on the app for the purposes 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.

According to a WhatsApp spokesperson, requiring messaging apps to “trace” chats is the equivalent of asking them to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy.

“We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us,” the WhatsApp spokesperson told BloombergQuint in an emailed statement.

The company has also added a page on the frequently asked questions section on its website, detailing the opposition to traceability requirements. Traceability, it said, breaks the protection of end-to end encryption provided to every user as in order to trace one message it will have to trace every message.

The threat that anything someone writes can be traced back to them takes away people’s privacy and would have a chilling effect on what people say even in private settings, violating universally recognized principles of free expression and human rights.
WhatsApp On Its Opposition To Traceability

The central government later on May 26, however, issued a press statement saying that asking WhatsApp to disclose the origin of a message does not violate the right to privacy in any manner. The government maintains that asking for disclosing the origin of a message is a last resort tool and can be used only after other remedies have proven to be ineffective.

Such a request can only be sought as per a process established by law and therefore has necessary safeguards, it said.

As per all established judicial dictum, no fundamental right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions. The requirements in the intermediary guidelines pertaining to the first originator of information are an example of such a reasonable restriction.
Central Government's Statement

So far, the IT Rules 2021 have been challenged by digital news companies. The Delhi High Court will take up those petitions for hearing on May 27.

WhatsApp’s petition is among the first to challenge the rules with respect to traceability requirements. The date of its hearing is not known yet.