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“As a platform, we are saying, if we are told to break encryption, then WhatsApp goes,” counsel Tejas Karia, appearing for WhatsApp, told a Division Bench comprising Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora.
WhatsApp said that the contents of the exchanges shared on its platform cannot be traced by any party other than the sender and the receiver as it's end-to-end encrypted in order to protect the privacy of the parties.
People use the messaging platform because of the privacy assured by it and also because messages are end-to-end encrypted, Karia added.
The HC was hearing a petition by WhatsApp and its parent company Facebook Inc (now Meta) challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which makes it obligatory for social media intermediaries requiring the messaging app to trace chats and make provisions to identify the first originator of information on the court's order.
This, the messaging platform says, undermines encryption of content as well as the privacy of the users. It also violates fundamental rights of the users guaranteed under Articles 14, 19, and 21 of the Constitution of India.
“There is no such rule anywhere else in the world. Not even in Brazil," Karia said, adding that the requirement was against the privacy of users and the rule was introduced without any consultation.
“We will have to keep a complete chain and we don’t know which messages will be asked to be decrypted. It means millions and millions of messages will have to be stored for a number of years,” he said.
However, counsel Kirtiman Singh, appearing for the central government, argued that the idea behind the guidelines was to trace the originator of the messages. Ultimately, there has to be some mechanism to trace the messages as this is the need of the hour and WhatsApp has already faced some very difficult questions before the United States Congress, he contended.
After brief arguments, the HC called for a balance to be struck and posted the case for further hearing on August 14. “…privacy rights were not absolute” and "somewhere balance has to be done," the HC observed.
The Supreme Court had last month transferred to the Delhi High Court a batch of pleas pending before different high courts across the country challenging the 2021 Rules.
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