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Replying to WhatsApp and Facebook's challenge to the traceability clause in the IT Rules, 2021, the Centre has informed court that as artificial persons incorporated outside India, they have no locus to challenge the vires of the Rule.

Challenging the provision, WhatsApp and Facebook stated that the rule violates the fundamental right to privacy by forcing them to build the ability to identify the first originator of  a message sent in India on their platforms on request by the Government.

Whatsapp and Facebook argued that this would break end-to-end encryption and infringe privacy principles.

They also alleged that there is no guarantee against arbitrary state action, including no prior judicial review under the Rule. They stated that the Rule is not proportional as the privacy infringement is "not through the least restrictive alternatives."

Replying, the Centre has said that as "an out and out foreign commercial entity it does not have any place of business in India and is engaged in the business of propagating information created by its platform's users." 

Therefore it has stated that these petitions by foreign commercial entities challenging the Constitutionality of any Indian law, are not maintainable.

The reply points out that remedies under Art. 32 and 226 are not available to foreign commercial entities for challenging constitutionality of Indian laws.

With respect to end-to-end encryption and right to privacy, the Centre has told the Delhi High Court that there is no fundamental right of anonymity under Part III of the Constitution. "The only right guaranteed is the right to remain silent," it has been said.

Seeking dismissal of the writ petition the Centre
has also informed Court that there is no lack of legislative competence with the Centre to have framed the IT Rules, 2021.

The court had earlier issued notice in a plea filed by WhatsApp and Facebook challenging the new IT Rules' feature of tracing the “First Originator” of messages on web-messaging platforms. The plea states that this traceability clause is in violation of the right to privacy.

The division bench of Chief Justice DN Patel and Justice Jyoti Singh had heard the matter.

In its plea WhatsApp has challenged "the requirement in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”) that intermediaries like the Petitioners enable “the identification of the first originator of the information” in India on their end-to-end encrypted messaging services (commonly referred to as “traceability”), upon government or court order."

WhatsApp has submitted that this requirement forces it 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 is the contention of the petitioner that Rule 4(2)

Violates the fundamental right to privacy and freedom of speech guaranteed under Articles 19 and 21 of the Constitution;
Is ultra vires the Information Technology Act, 2000, the parent statute under which the impugned Rule 4(2) was prescribed;
Violates Article 14 of the Constitution.
Reference was made by the petitioners to Para 375, 644 of the Puttaswamy Judgment, where the Supreme Court identified 9 types of Privacy, including, (i) Communicational Privacy (ii) Informational Privacy (iii) Associational Privacy.

They further contended that none of the tests laid down by the said judgment, namely, (i) legality (ii) need (iii) proportionality seemed to exist in the present case.

“Requiring intermediaries to enable the identification of the first originator of the information in India on end-to-end encrypted messaging services constitutes a dangerous invasion of privacy. This would require Petitioner to build the ability to identify the first originator of every communication sent in India on its platform, as there is no way to predict which message will be the subject of such an order seeking first originator information. This eliminates the right of the hundreds of millions Indian citizens using WhatsApp to maintain the privacy of their messages, which is antithetical to end-to-end encryption and the core privacy principles underlying it”, the plea states.

The petition is filed through M/s. Shardul Amarchand Mangaldas.

Case Title: WhatsApp LLC vs UOI/ Facebook Inc vs UOI