Delhi High Court seeks Centre's reply on Facebook, WhatsApp pleas

New Delhi: The Delhi High Court on Friday asked the Centre to reply to pleas by Facebook and WhatsApp challenging the new IT rules for social media intermediaries requiring the messaging app to 'trace' chats and make provisions to identify the first originator of information. The pleas have challenged the new rules on the grounds that they violate the right to privacy and are unconstitutional.

A bench of Chief Justice D N Patel and Justice Jyoti Singh issued notice asking the Centre, through the ministry of electronics and information technology, to file a reply on the petition as well as the application for stay on the implementation of the Rules. The court listed the matter for further hearing on October 22. The counsel for the Centre said the main advocate was not available and sought an adjournment which was opposed by senior advocates Harish Salve and Mukul Rohatgi, appearing for WhatsApp and Facebook, respectively.

The Facebook owned company, 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 end-to-end encryption and its benefits "at risk".

WhatsApp LLC has urged the high court to declare Rule 4(2) 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 non-compliance with Rule 4(2) which requires enabling the identification of the first originator of information.

WhatsApp said the traceability provision is unconstitutional and against the fundamental right to privacy.

The plea said the traceability requirement forces the company to break end-to-end 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 securely.

It 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 retaliation.