WhatsApp has told the Delhi High Court that it may shut down its operations in India in a plea challenging a provision of the 2021 Information Technology Rules that requires social media platforms to identify the first originator of messages to a competent authority upon legal request.WhatsApp has told the court that the new law would force it to break end-to-end encryption, which is one of the key privacy features of the messaging platform.Counsel Tejas Karia, appearing for WhatsApp, told the Division bench comprising Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora, “As a platform, we are saying, if we are told to break encryption, then WhatsApp goes.” The Delhi High Court said, “Privacy rights were not absolute… balance needs to be done”.

What is the Case?

WhatsApp and Meta filed a plea challenging India’s IT rules 2021 for social media intermediaries, requiring them to identify the first originator of information. The legal challenge is around Information Technology Rule 4(2) of the 2021 IT (Intermediary Guidelines and Digital Media Ethics Code), which mandates “significant social media intermediaries” to “enable the identification of the first originator of the information” which may be required by a court order or other competent authority.The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were announced by the government on February 25, 2021 and required large social media platforms like Twitter, Facebook, Instagram and WhatsApp to comply with the latest norms.The bench ordered that the matter be listed for hearing on August 14 to await the transfer of all other petitions challenging several aspects of the 2021 IT Rules to it pursuant to a Supreme Court order.On March 22, the Supreme Court transferred to the Delhi High Court a batch of pleas pending before different high courts across the country challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.Several petitions were pending on the issue before different high courts including Karnataka, Madras, Calcutta, Kerala and Bombay high courts.

What is WhatsApp Saying?

WhatsApp has categorically said it will not break its end-to-end encryption as it feels that would violate its privacy.In 2021, WhatsApp in its petition 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”. It said the traceability provision was against the “fundamental right to privacy.”WhatsApp has urged the high court to declare Rule 4(2) of the intermediary rules as unconstitutional, ultra vires 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.

What is Government Saying?

The Centre argues that traceability, in knowing the first originator of the message, is significant in tackling harmful content such as fake news or hate speech.The government said that Section 87 of the Information Technology Act gave it power to formulate Rule 4(2) to curb fake news or “instigating” content that threatens national security or communal harmony.Section 4(2) mandates significant social media intermediary to enable identification of the first originator of an information in “legitimate state interest” to curb fake news.

What are new IT Rules 2021?

The amendments to the Information and Technology ((Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) cover social media intermediaries (SMIs). The new rules define an online gaming intermediary as “any intermediary that enables the users of its computer resource to access one or more online games”. The additional portions provide the regulatory framework for online gaming and misinformation.The earlier rules that cover social media intermediaries shall now cover online gaming intermediaries, with a few more clauses thrown in such as no wagering on the outcome on any game will be allowed, though users can still play real money online game, which, for the purposes of the notification, is defined as “an online game where a user makes a deposit in cash or kind with the expectation of earning winnings on that deposit”.The IT rules also put the onus on the social media intermediary to ensure content posted on its platform is not obscene, pornographic, paedophilic, violating someone else’s privacy, hate speech, promoting illegal activities or threatening “the unity, integrity, defence, security or sovereignty of India”.The 2023 amendments focus on ensuring no wagering — or betting on the outcome of any online game — is allowed, and prohibit online gaming intermediaries from hosting, or allowing users to use their resource to host — (i) an online game that is not verified as a permissible online game, (ii) advertisement or surrogate advertisement or promotion of non-permissible online game or any intermediary offering such an online game.The draft also specifies certain conditions for organisations to apply for the status of self-regulatory bodies — the entity is a company registered under section 8 of the Companies Act, 2013; its membership is representative of the gaming industry.

What is End-to-End Encryption?

Social media messaging and video calling apps provide end-to-end encryption, which keeps data or information secure and away from hackers during transit. The system encrypts a message in an “alien”, which can only be deciphered by the device that is intended to receive it.It means that the encryption takes place on the sender’s device through service providers such as WhatsApp, Instagram, Zoom to the receiver where the device matches the encryption code. Once the code matches, the message gets decrypted in a readable format. This is applied to video calling formats too.“End-to-end encryption ensures only you and the person you’re communicating can read or listen to what is sent, and nobody in between, not even WhatsApp,” read WhatsApp’s FAQ page.