The Kerala High Court on Tuesday stayed a lower court order summoning WhatsApp's India representative to provide information regarding the first originator of certain messages in relation to a complaint filed by a woman-politician.The woman had alleged that the messages outraged her modesty and tarnished her image as a politician.The High Court was hearing a petition filed by WhatsApp challenging the said order of the Magistrate Court issued on November 20, 2023 under Rule 4(2) of the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules 2021(IT Rules 2021).Besides challenging the order, WhatsApp also said that Rule 4(2) should be struck down as unconstitutional on several grounds.Rule 4(2) mandates that a significant social media intermediary which provides messaging service must trace the identity of the first originator of a message pursuant to a court order.Justice Bechu Kurian Thomas accepted the contention of WhatsApp that since the offence alleged is punishable only punishable with less than 5 years in jail, Rule 4(2) cannot be invoked."A perusal of the above Rule [Rule 4 (2)] indicates that the requirement of a significant social media intermediary to provide information arises only when the investigation or prosecution relates to an offence that affects the sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation to rape, sexually explicit material, or child sexual abuse material, which are punishable with imprisonment for a term of not less than five years," the order said.Therefore, the High Court stayed the Magistrate Court order.In the plea, WhatsApp argued that Rule 4(2) violates fundamental rights to privacy and freedom of speech guaranteed by the Constitution, is ultra vires the Information Technology Act, and manifestly arbitrary in violation of Article 14 of the Constitution.
The plea highlighted that challenge to the IT Rules is already pending before various High Courts including the Delhi High Court where WhatsApp itself has challenged the same.
Hence, the Magistrate should not have issued the order, it was contended.
Further, it was claimed that even if the order were valid, it would still be unconstitutional and raise significant legal questions.
WhatsApp was represented by advocates Tejas Karia, Swati Agarwal, Shashank Mishra, Akshi Rastogi, Thomas P Kuruvilla and P Prijith.
TAGS: Kerala High Court WhatsApp India representative Message origin Woman-politician Modesty Magistrate Court Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules 2021 (IT Rules 2021) Rule 4(2)
