Supreme Court: In the bid to gather information from intermediaries regarding the names of the originators of any message/content/information shared on the platforms run by these intermediaries, the Court has asked the Ministry of Electronics & Information Technology to file an affidavit within three weeks placing on record the stage at which the process of framing/notifying the rules is at. The Court also asked the Secretary to give definite timelines in respect of completing the process of notifying the rules.
The bench of Deepak Gupta and Aniruddha passed the order in the light of the fact that there are various messages and content spread/shared on the social media, some of which are harmful.
“Some messages can incite violence. There may be messages which are against the sovereignty and integrity of the country. Social media has today become the source of large amount of pornography. Paedophiles use social media in a big way. Drugs, weapons and other contrabands can be sold through the use of platforms run by the intermediaries.”
The bench, hence, noticed that in such circumstances, it is imperative that there is a properly framed regime to find out the persons/institutions/bodies who are the originators of such content/messages. It may be necessary to get such information from the intermediaries.
Some intermediaries, however, submitted that they cannot provide information either with regard to the content or with regard to the originators because they have end to end encryption and therefore, even the intermediaries are not in a position to find out who is the originator or what is the content.
On the said issue, the Court noticed that
“de-encryption, if available easily, could defeat the fundamental right of privacy and de-encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded. However, at the same time, the sovereignty of the State and the dignity and reputation of an individual are required to be protected.”
It, hence, said that for purposes of detection, prevention and investigation of certain criminal activities it may be necessary to obtain such information. De-encryption and revelation of the identity of the originator may also be necessary in certain other cases, some of which have been highlighted hereinabove.
After Solicitor General Tushar Mehta told that the Court that the matter is under active consideration of the Union of India and that the draft rules in this regard have already been framed and are only required to be notified, the Court asked Solicitor General to take complete instructions in the matter.
[Facebook Inc. v. Union of India, 2019 SCC OnLine SC 1264, order dated 24.09.2019]