Delhi HC asks Union Govt to respond to pleas by FB, WhatsApp challenging IT Rules 2021

New Delhi: The Delhi High Court on Friday asked Union government to reply to pleas by Facebook and WhatsApp challenging the new IT rules for social media intermediaries requiring the messaging app to trace chats and make provisions to identify the first originator of information.

The pleas have challenged the new rules on the grounds that they violate the right to privacy and are unconstitutional.

Listing the matter for further hearing on October 22, a bench of Chief Justice D N Patel and Justice Jyoti Singh issued notice and asked the Union government through the Ministry of Electronics and Information Technology to file reply to the petition as well as application to stay the implementation of the Rules.

The counsel for Union government sought an adjournment citing absence of main advocate which was opposed by senior advocates Harish Salve and Mukul Rohatgi, appearing for WhatsApp and Facebook respectively.

The Facebook owned company, WhatsApp, in its plea 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".

WhatsApp LLC has urged the high court to declare Rule 4(2) of the Intermediary Rules as unconstitutional, ultra vires to 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 to enable the identification of the first originator of information.

In another case, Delhi High Court on Friday said it will hear in October the appeals of Facebook and WhatsApp challenging its single-judge order dismissing their pleas against the probe ordered by the Competition Commission of India (CCI) into the instant messaging app's new privacy policy.

A bench of Chief Justice D N Patel and Justice Jyoti Singh listed the matter for October 11 while extending the time to file replies to the June 4 and 8 notices issued by CCI to WhatsApp and Facebook, till then.

While CCI was represented through Additional Solicitor General Aman Lekhi, WhatsApp and Facebook were represented through senior advocates Harish Salve and Mukul Rohatgi respectively.

WhatsApp and Facebook have also challenged the CCI's asking them to furnish certain information for the purpose of inquiry conducted by it.

The case relates to the appeals of Facebook and WhatsApp against a single judge order dismissing their pleas against the probe CCI ordered into the instant messaging app's new privacy policy.

The division bench of the high court had on May 6 issued notices on the appeals and asked the Union government to respond to it.

The single judge on April 22 had said though it would have been "prudent" for the CCI to await the outcome of petitions in the Supreme Court and the Delhi High Court against WhatsApp's new privacy policy, not doing so would not make the regulator's order "perverse" or "wanting of jurisdiction".

The court had said it saw no merit in the petitions of Facebook and WhatsApp to interdict the investigation directed by the CCI.

The CCI had contended before the single judge that it was not examining the alleged violation of individuals' privacy which was being looked into by the Supreme Court.

It had argued before the court that the new privacy policy of WhatsApp would lead to excessive data collection and "stalking" of consumers for targeted advertising to bring in more users and is therefore an alleged abuse of dominant position.

WhatsApp and Facebook had challenged the CCI's March 24 order directing a probe into the new privacy policy.

In January, the CCI on its own decided to look into WhatsApp's new privacy policy on the basis of news reports regarding the same.