The Kerala High Court has issued a stay on the directive from the Additional Chief Judicial Magistrate, Thiruvananthapuram, which required a representative from WhatsApp India to appear in person before the court on February 7th.

The Magistrate had ordered the WhatsApp India representative to appear in person to disclose information about the 'first originator' of an end-to-end encrypted derogatory WhatsApp message. This message was alleged to have offended the modesty of the complainant, a woman who is a politician, and tarnished her public image.

The complainant filed an FIR, alleging the commission of offenses under Section 354 A (1)(iv) of the Indian Penal Code, Sections 67 of the Information Technology Act, and Section 120 (o) of the Kerala Police Act. These offenses were related to the circulation of derogatory messages about her.

Justice Bechu Kurian Thomas presided over the hearing of the matter. The Court has further directed the respondents, including the Union Government, State Government, and the Investigating Officer, to submit their counter affidavits.

In the case's context, the Magistrate issued notices to WhatsApp, requesting information such as the mobile number, IP address, registration details, login information, linked device details, connected email addresses, etc., of the individual who initially posted derogatory messages against the complainant.

In its plea, WhatsApp contended that the Magistrate's order infringes upon its freedom of speech and expression, as well as the fundamental right to privacy and the rights of its users in India. WhatsApp emphasized that it offers an end-to-end encrypted messaging service, ensuring that only the sender and recipient can access the messages.

WhatsApp further asserted that even it could not access end-to-end encrypted messages in accordance with its privacy and security policies. It clarified that the platform solely utilizes unencrypted information, such as profile photos and user reports, for the prevention of offenses.

The order issued by the Magistrate is also being contested on the basis that it does not meet the conditions required for issuing such an order under Rule 4(2) of the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules 2021.

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 highlighted that the petitioner had previously challenged Rule 4(2) in various high courts including the Delhi High Court, Tripura High Court, Madras High Court, Bombay High Court, and others, with those matters currently awaiting consideration. Additionally, it noted that the Union of India had filed transfer petitions before the Supreme Court seeking to consolidate cases challenging the Intermediary Rules to be heard by the Apex Court. Furthermore, it mentioned that the Supreme Court issued a common order in the case of 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 scheduled for hearing on April 2, 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