IN the midst of its face-off with the Indian government, social media messaging giant WhatsApp has moved the Delhi High Court seeking an order to declare the Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”) as being violative of the following rights guaranteed by the Constitution:
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Articles 14 (right to equality)
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Article 19(1)(a) (freedom of speech and expression)
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Article 19(1)(g) (freedom to practise any profession, or to carry on any occupation, trade or business)
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Article 21 (right to life and liberty which also includes right to privacy)
WhatsApp, which has over 2.5 billion users worldwide, has argued that criminal liability may not be imposed for non-compliance with Rule 4(2) and any attempt to impose criminal liability for non-compliance is unconstitutional, ultra vires the IT Act, and illegal. Rule 4(2) requires intermediaries like Whats App to enable “the identification of the first originator of the Information”, which means this rule forces WhatsApp to disclose the identity of the person who was the first source of the message upon the government or courts order. Hence, WhatsApp will have to keep a track of every message sent on its platform for that purpose.
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