Kerala High Court Stays Summons To WhatsApp India Representative To Identify 'First Originator' Of Alleged Derogatory Message

The Magistrate had directed the in-person appearance of the WhatsApp India representative to provide details regarding the 'first originator' of an end-to-end encrypted derogatory WhatsApp message which allegedly outraged the modesty and tarnished the public image of the complainant-woman as a politician.

The complainant had registered an FIR alleging commission of offences under Section 354 A (1)(iv) IPC, Sections 67 IT Act, Section 120 (o) Kerala Police Act for circulating derogatory messages about her.

Justice Bechu Kurian Thomas was hearing the matter. The Court has also directed the respondents (Union Govt, State Govt and Investigating Officer) to file their counter affidavits.

In the facts of the case, notices were issued by the Magistrate seeking information from WhatsApp such as mobile number, IP address, registration, login details, linked device details, connected email addresses etc. of the person who had first posted derogatory messages against the complainant.

WhatsApp, in its plea, stated that the impugned order of the Magistrate violates its freedom of speech and expression, the fundamental right to privacy and the rights of its users in India. It stated that WhatsApp provides an end-to-end encrypted messaging service, which means that only the sender and recipient can access those messages. It thus stated that even WhatsApp could not access end-to-end encrypted messages as per their privacy and security policies and that it only uses unencrypted information like profile photos and user reports for the prevention of offences.

The order issued by the Magistrate is also challenged on the ground that it does not satisfy the conditions necessary for issuing an order as per Rule 4(2) of the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules 2021.

The proviso to Rule 4 (2) mandates that a social media intermediary could identify the originator of first information based on a judicial order only for purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, 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 with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years. Thus, the plea stated that the order issued by the Magistrate could not have been issued since the alleged offences were not punishable with imprisonment for not less than five years.

The plea further stated that the petitioner had already challenged Rule 4 (2) before the Delhi High Court, Tripura High Court, Madras High Court, Bombay High Court etc and those matters were pending consideration. It also added that the Union of India had filed transfer petitions before the Apex Court seeking to transfer cases challenging the Intermediary Rules to be heard by the Apex Court. It also stated that the Apex Court issued a common order in Skand Bajpai & Anr v Union of India and other connected matters staying further proceedings pending before various High Courts challenging the Intermediary Rules.

The matter has been posted to April 02, 2024.

The plea was moved by Advocates Thomas P Kuruvilla, P Prijith

Case title: Whatsapp LLC Vs Union Of India

Case number: WP (Crl) 186/2024