The Centre has told the court that WhatsApp is a foreign commercial entity – doesn’t have a place of business in India and is engaged in business of propagating info created by its users. 

WhatsApp is foreign commercial entity and its plea challenging the Constitutionality of any Indian law is hence not maintainable at the instance of a foreign commercial entity, the Centre has said as per ANI.  

In February this year, the government introduced new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, making it mandatory for social media intermediaries like Twitter, Facebook, Instagram and WhatsApp to trace chats and make provisions to identify the first originator of information. 

WhatsApp moved High Court, challenging the new IT rules. It said the new rules violate the right to privacy and are unconstitutional. The Facebook-owned company further 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”.

In its 224-page petition, WhatsApp urged the high court to declare Rule 4(2) of the Intermediary Rules as unconstitutional, ultra vires to the IT Act and illegal.

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

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.

WhatsApp 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 conversations, it said.

There 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 end-to-end encryption and the privacy principles underlying it, and impermissibly infringes upon users’ fundamental rights to privacy and freedom of speech, the petition said.

With agency inputs