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Delhi High Court Issues Notice To Centre On WhatsApp's Plea Challenging Traceability Clause Under IT Rules 2021

Akshita Saxena
27 Aug 2021 7:34 AM GMT
Delhi High Court Issues Notice To Centre On WhatsApps Plea Challenging Traceability Clause Under IT Rules 2021
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The Delhi High Court on Friday issued notice on WhatsApp's plea challenging the "traceability" clause mentioned under Rule 4(2) of the Information Technology Rules, 2021, as violative of a person's right to privacy enshrined in the Supreme Court judgment of KS Puttuswamy v. Union of India.A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh issued notice after hearing...

The Delhi High Court on Friday issued notice on WhatsApp's plea challenging the "traceability" clause mentioned under Rule 4(2) of the Information Technology Rules, 2021, as violative of a person's right to privacy enshrined in the Supreme Court judgment of KS Puttuswamy v. Union of India.

A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh issued notice after hearing Senior Advocate Mukul Rohatgi for Whatsapp.

The Central Government had sought an adjournment in the matter. Taking objection to this, Rohatgi submitted,

"On first date of hearing, other side came and said they want to seek some instructions. So notice was not issued. Today again they moved a letter seeking adjournment. At least issue notice, let them file a reply. It's a very serious question raised in relation to validity IT Rules 2021. We are not asking for an interim order just now."

Accordingly, the Bench issued notice and posted the matter for hearing on 22nd October.

Background

Whatsapp's case is that the traceability clause will put professionals of risk including journalists who "could be at risk of retaliation for investigating issues that may be unpopular"; civil or political activists "for discussing certain rights and criticizing or advocating for politicians or policies" and clients and attorneys "who could become reluctant to share confidential information".

The company has also argued that the traceability requirement forces it to break end-to-end encryption on its messaging service and build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever.

"There is no law enacted by Parliament that expressly requires an intermediary to enable the identification of the first originator of information in India on its end-to-end encrypted platform or otherwise authorizes the imposition of such a requirement through rule-making. While Impugned Rule 4(2) seeks to impose such a requirement, the Impugned Rule is not a valid law as it is subordinate legislation, passed by a Ministry and not Parliament, that is ultra vires its parent statute, Section 79," the plea read.

Relying heavily on the judgment of KS Puttuswamy v. Union of India, WhatsApp contends that the said requirement does not pass the tests enshrined under Art. 21 of the Constitution, is manifestly arbitrary in violation of Art. 14, is violative of the Right to Freedom of Speech and Expression and sec. 79 and 69A of the Information Technology Act.

Furthermore, stating that the requirement does not pass the necessity test, the plea reads thus:

"Impugned Rule 4(2) allows for the issuance of orders to identify the first originator ofinformation in India without judicial oversight, let alone prior judicial oversight, which means there is no "guarantee against arbitrary State action". Impugned Rule 4(2) therefore should be struck down as it is an unconstitutional invasion of the fundamental right to privacy."

Challenging the Rule as being violative of Freedom if Speech and Expression, the plea states that once citizens become aware that SSMIs have "built the ability to identify the first originator of information in India on their end-to-end encrypted messaging services", such individuals "will not feel safe to speak freely for fear that their lawful private communications will be used against them, thereby infringing their rights to privacy and free speech."

Case Title: Whatsapp LLC v. Union of India

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