Against WhatsApp Tripura High Court stays Trial Court ruling

Agartala: A Tripura High Court division bench headed by Chief Justice Aparesh Kumar Singh granted interim relief to the social media instant messaging platform WhatsApp LLC and stayed an order passed by the Trial Court.

The lower court, in its order, directed the authorities of the social media platform to reveal the identity of the ‘originator’ of a chat containing a fake resignation letter of Chief Minister Dr. Manik Saha.

“It appears that the learned Trial Court did not specifically address the issue relating to the extent of the threat to public order as contemplated under Rule 4(2) concerning the request for disclosure of the first originator of the message only two days after the institution of FIR.

Reference is made to the decision in the case of Justice K.S. Puttaswamy (Retd.) & Anr. Vs. Union of India & Ors., reported in 2017 SCC 1 on the Right to Privacy. As such, the petitioner has been able to establish a case for interim relief.”

“The writ petition questions the validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, apart from challenging the impugned order dated May 27, 2023, passed in case No. 2023 NCC 044 by the learned Court No. 6, First Class, Judicial Magistrate in Agartala, West Tripura (Annexure-1 to the writ petition).

Senior counsel Mukul Rohatgi, representing WhatsApp LLC in the case, cited an order dated May 9, 2022, passed by the Apex Court in a batch of Writ Petition(s)(Civil) No(s). 799/2020 in Skand Bajpai and anr. Vs. Union of India & ors., whereby further proceedings pending before the High Court in respect of the challenge to the instant Rules of 2021 have been stayed.

The senior Advocate argued before the Court that Rule 4(2) of the I.T. Rules 2021 prescribes the conditions under which a judicial order can be issued by a Court of competent jurisdiction to a significant social media intermediary for disclosing the first originator of the message.

The provision indicates that such an order shall only be passed for the purposes of prevention, detection, investigation, prosecution, or punishment of an offense relating to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, or incitement to an offense relating to the above or in relation to rape, sexually explicit material, or child sexual abuse material, punishable with imprisonment for a term of not less than five years.

The second provision further states that no order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information.

“Learned senior counsel for the petitioner submits that no grounds of public order or imminent threat to public order have been established in the application made by the investigating officer on May 27, 2023 (Annexure-20 to the writ petition), nor has the learned Judicial Magistrate in the impugned order of the same date referred to any such tangible threat to public order that requires invoking Rule 4(2) to direct the petitioner to disclose the first originator of the alleged fake content,” the Court order further reads.

Advocate General of Tripura SS Dey, on the other hand, objected to the interim relief sought by the petitioner, stating that the petitioner, being an intermediary, does not have the standing to object to the disclosure requested by the Trial court.

“Learned senior counsel for the petitioner, therefore, submits that the invocation of Rule 4(2) by the learned Court at the instance of the investigating agency right two days after the institution of the FIR is without recording proper satisfaction as to the threat of public order, if any, relating to the alleged offense.

As such, he requests that interim protection may be granted.

S.S. Dey, learned Advocate General, assisted by S. Shosh, learned Addl. P.P., appearing for the State-respondent, has objected to the interim prayer. He submits that the petitioner, being an intermediary under the I.T. Act and the 2021 Rules framed thereunder, does not have any standing to object to the disclosure of the first originator of the message as per the directions of the learned Trial Court.

None of the accused persons has approached this Court objecting to such disclosure. After considering the arguments of the parties and relevant Rule 4(2) of the Intermediary Rules 2021, as well as reviewing the application of the Investigating Agency dated May 27, 2023, and the impugned order dated May 27, 2023,” the order further reads.