Case BriefsHigh Courts

“People from the past, have a tendency to walk back into present and run over the future.”

Orissa High Court: S.K. Panigrahi, J., while addressing a bail application observed that,

Tik Tok Mobile App which often demonstrates a degrading culture and encourage pornography besides causing pedophiles and explicit disturbing content, is required to be properly regulated so as to save the teens from its negative impact.

In the present petition and application has been filed under Section 439 of CrPC to seek bail. She is an accused for an offence under Sections 306 and 34 of Penal Code, 1860.

Background

Allegation against the accused/petitioner is that she along with the co- accused have inflicted direct and indirect mental torture on the deceased (Padmalochan Barik) which resulted in the commission of suicide by the deceased.

With the statements recorded it was revealed that petitioner was alleged to have been in a love relationship with the co-accused before she got married with the deceased.

Co-accused had forwarded some of the intimate Tik Tok videos with petitioner to the deceased and the same were alleged to have been streamed on social media as well.

The underpinnings of familial shame made deceased suffer a lot internally in the form of tremendous mental pressure which invited a dangerous haste in ending his life by hanging himself.

Abetment of Suicide

From the investigation it was clear that the co-accused was responsible for the abetment of suicide.

Petitioner’s Counsel L.N. Patel

It was submitted that petitioner had no role in the abetment of suicide of her husband and the same has not yet been established. Hence she may be granted bail.

Decision 

On perusal of the above, bench stated that it is a prima facie view that the incident might have been perceived to be just a streaming of Tik Tok videos of the deceased’s wife and her former beau but it was morally and legally heinous as the same led to an ugly consequence.

Petitioner being wife should have the deceased’s emotional safety, instead she became the cause of his emotional insecurity.

Offence of abetment to suicide under Section 306 of IPC is endowed with twin essential ingredients:(i)a person commits suicide (ii) such suicide was abetted by the accused. The offence involves a mental process of instigating a person of intentionally aiding a person in doing of a thing.

In Court’s opinion, the Tik Tok videos had escaped the investigation officer’s attention.

Tik Tok Videos 

Bench stated that the above-mentioned Tik Tok videos became the cause for tragic end of an innocent life. Transmitting Tik Tok videos with offensive content to harass victims are on prowl and are gradually on the rise.

Of late, Cyber bullying activity like the instant case, has reared its ugly head and swept away so many innocent lives through many of its ugly manifestations.

With regard to Information Technology Act, what the Court said?

Information Technology Act, 2000 does impose an obligation upon such companies to take down content and exercise due diligence before uploading any content, but India lacks a specialized law to address the crime like cyber bullying.

In the present matter, Court stated that,

Further digging up, the instant case might bring some surprises, but at the moment the role of the co-accused seems to be quite apparent in terms of preparing the Tik Tok videos having some inappropriate content and sending the same to the deceased. This aspect of the taint cannot be properly established sans a befitting trial process.

Even a positive role of the petitioner in the entire episode cannot be ruled out, however, at the moment, invoking Section 306 would be preposterous. Hence, without more ado petitioner is granted bail. [Shibani Barik v. State of Odisha, 2020 SCC OnLine Ori 425, decided on 28-05-2020]

COVID 19Op EdsOP. ED.

The practice of telemedicine is fundamentally an intricate combination of ‘the practice of medicine’ with ‘information technology’.

There is no doubt, several studies, seminars and workshops have taken place over a period of time to examine the feasibility of providing medical consultation through technology popularly known by ‘Telemedicine’. The Corona crisis has undoubtedly pushed the envelope further and forced the Government in bringing out the Telemedicine Guidelines (as discussed below) which has been long pending demand of the medical fraternity.

Very few countries in the world have legislated on Telemedicine. Malaysia is one such country which has a Telemedicine Act, 1997. In the USA, the State of California, provides for the Telemedicine Development Act of 1996 which prohibits face-to-face visit if the service can be provided through telemedicine.

So what does Telemedicine mean:  ‘healing from a distance’. WHO[1] has adopted the following description of telemedicine: ‘The delivery of health care services, where distance is a critical factor, by all healthcare professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of healthcare providers, all in the interests of advancing the health of individuals and their communities.’

The main purpose of telemedicine and virtual consultation is to facilitate access to healthcare to all sections of the society within India by providing faster, cheaper and better communication for treatment and especially for those who are in distant areas and lack any means of transport.

The existing laws relating to the medical profession are as follows:

Undoubtedly all the existing laws relating to both ‘medicine’ and ‘information technology’ in India would apply to Telemedicine.

Medical related legislations

  • Drugs and Cosmetics Act, 1940 & Drugs and Cosmetics Rules, 1945;
  • The Indian Medical Council Act, 1956, The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002;
  • Clinical Establishments (Registration and Regulation) Act, 2010 (‘the Clinical Establishments Act’).

Information technology’ law

  • Information Technology Act, 2000;
  • Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011;
  • Information Technology (Intermediaries Guidelines) Rules, 2011.

The Information Technology Act, 2000[2] (“the IT Act”) contains provisions for safeguarding the security and privacy of information exchanged using means recognised under the IT Act. All companies registered under technology or providing technology services are governed by the IT Act.

Under these laws, only a person who is a registered medical practitioner and provides a valid and legal prescription under the Drugs and Cosmetics Rules, 1945, is allowed to practice medicine in India. A registered medical practitioner generally provides a handwritten prescription with his signature on it. In the case of telemedicine, a prescription is valid even if it is provided by the way of digital signatures as per Section 5 of the Information Technology Act, 2000. Through the IT (Amendment) Act, 2008[3], electronic records are admissible as evidence in a court under the Evidence Act, 1872.

Lack of clear guidelines previously

A 2018 judgment of the High Court of Bombay in Deepa Sanjeev Pawaskar v. State of Maharashtra[4] had created uncertainty and ambiguity for registered medical professionals, raising doubts on the practice of telemedicine about the place and legitimacy of telemedicine because an appropriate framework does not exist.

In the said casethe patient was directed to be admitted in the absence of doctors and medicines were administered on telephonic instructions. Additionally, there was no resident medical officer. An alternative arrangement for a doctor was made by the staff when the condition of the patient started deteriorating. The Bombay High Court held that it was criminal negligence, which is defined as gross negligence so extreme that it is punishable as a crime. It is further stated that the element of criminality is introduced not only by a guilty mind but by the practitioner having run the risk of doing something with recklessness and indifference to the consequences.

Until recently, there were no exclusive legislation or guidelines on the practice of telemedicine through video, phone, Internet based platforms (web/chat/apps etc).

Telemedicine Practice Guidelines

The demands of the medical fraternity were somewhat fulfilled. On 25-3-2020, the Board of Governors (in supersession of the Medical Council of India) framed the Telemedicine Practice Guidelines[5] (“the Guidelines”) which was added as Appendix 5 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulations, 2002[6] (“the Ethics Regulations”).

These guidelines include both the overarching principles and a practical framework. While the overarching principles would be common to all future guidelines, the latter specifically tries to address the current need in the wake of COVID-19 outbreak. It has been decided to provide statutory basis to the “Telemedicine Practice Guidelines”. Accordingly, the same has been included as an amendment to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, by adding Regulation 3.8 titled as “Consultation by Telemedicine” in the said Regulations.

On 12th May 2020, the Board of Governors, Medical Council of India with the previous sanction of the Central Government of India, passed new regulations called “the Indian Medical Council (Professional Conduct, Etiquette and Ethics) (Amendment) Regulations, 2020”[7]. These Regulations include both the overarching principles and a practical framework. 

Some of the main features of the Telemedicine Guidelines are as follows:

A, The Guidelines lay down the definitions of the terms ‘Telemedicine’, ‘Telehealth’ and ‘Registered Medical Practitioner ’(“RMP”);

  1. They help realise the full potential of advancements in technology and provide practical advice to the registered medical practitioners by encouraging the use of telemedicine as a normal practice;
  1. They provide norms and protocols relating to physician-patient relationship; issues of liability and negligence; evaluation, management and treatment; informed consent; continuity of care; referrals for emergency services; medical records; privacy and security of the patient records and exchange of information; prescribing; and reimbursement; health education and counseling;
  2. Spells out how technology and transmission of voice, data, images and information should be used in conjunction with other clinical standards, protocols, policies and procedures for the provision of care;
  3. Hospitals, clinics and companies will need to ensure that their doctors receive the mandatory online training. RMPs using telemedicine shall uphold the same professional and ethical norms and standards as applicable to traditional in-person care, within the intrinsic limitations of telemedicine.
  4. All registered medical practitioners intending to provide online consultation need to complete a mandatory online course within 3 years of its notification.  In the interim period, the principles mentioned in these guidelines need to be followed. Thereafter, undergoing and qualifying such a course, as prescribed, will be essential prior to practice of telemedicine.  This would involve additional compliance and costs. An interim waiver seems to have been provided to the RMPs in view of the prevalent situation caused by the Covid-19 pandemic.

In addition to the Guidelines, the RMPs, hospitals, clinics and companies will need to comply with all other applicable requirements including data privacy obligations.

Exclusions in the Guidelines

The Guidelines explicitly excludes the following: 

  • Specifications for hardware or software, infrastructure building and maintenance
  • Data management systems involved; standards and interoperability
  • Use of digital technology to conduct surgical or invasive procedures remotely
  • Other aspects of Tele-health such as research and evaluation and continuing education of healthcare workers
  • Does not provide for consultations outside the jurisdiction of India

Framework for Telemedicine as per the Guidelines

The framework for practicing telemedicine is there in 5 scenarios:

1. Patient to RMP;

2. Caregiver to RMP;

3. Health Worker to RMP;

4. RMP to RMP;

5. Emergency Situations.

Main Guiding Principle for Teleconsultations 

Seven elements need to be considered before beginning any telemedicine consultation:

1. Context 

2. Identification of RMP and patient

3. Mode of Communication

4. Consent

5. Type of Consultation

6. Patient Evaluation

7. Patient Management

The professional judgment of a RMP should be the guiding principle for all telemedicine consultations: An RMP is well positioned to decide whether a technology-based consultation is sufficient or an in-person review is needed. The RMP should exercise proper discretion and not compromise on the quality of care.

Legal Challenges that may arise while providing telemedicine consultations

We live and breath technology from the time we get up until we retire for the day. Technology provides user friendly solutions but also brings with it challenges, risks, drawbacks and limitations like anything else.

Telemedicine involves a constant exchange of information between the patient and the service provider. The patient’s personal information, such as medical history and physiological conditions, is considered sensitive personal data or information (‘SPDI’ under the Data Protection Rules).  When a corporate body collects, stores, transfers or processes such information, certain requirements under the Data Protection Rules are triggered. Over a period of time as is one is aware diagnostic labs all across the country assess medical tests through the medium of technology, something even as routine as blood tests as well. The diagnostic labs become the custodian of these medical records of the patients and most of the labs these days provide records through emails. 


Similarly, hospitals, polyclinics and individual practitioners would need to consider adopting virtual consultations as part of their practice, in the present times now that some guidelines are in place. However, they should ensure they follow the guidelines strictly. It can be mitigated through appropriate training, enforcement of standards, protocols and guidelines.

The scope for telemedicine abuse is possible and some key medico-legal and ethical issues[8] would arise while practicing telemedicine and virtual consultation.  As the telemedicine practice evolves, issues would arise from time to time.  I have highlighted only a few of them here briefly.

Relationship of RMP and Patient

Patients trust healthcare professionals while seeking treatment and confide in them. In the light of the aforesaid telemedicine guidelines, the scope of the Information Technology Act, 2000 is somewhat quite limited and it does not specifically deals with the practice of medicine through technology. However, there are some provisions in the said Act which may apply on the application of Telemedicine. Sections 4 and 5 of IT Act have given legal recognition to the electronic record and digital signatures.

The IT Act has also amended the Evidence Act, 1872 thereby making the electronic record admissible in evidence. Section 2(1)(t) of the IT Act defines “electronic record” as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

The IT Act identifies three parties to the electronic record/message: the originator [Section 2(1)(za)], the addressee [Section 2(1)(b)] and the intermediary [Section 2(1)(w)]. The originator is the sender, the generator of any electronic message; whereas, the intermediary is a facilitator to receive, store, or transmit or provide any service with respect to that message and the addressee is the recipient of that message.

Retention of electronic records, their attribution, acknowledgment, dispatch (time and place), and receipt have been given due recognition in the IT Act and hence, its main purpose is to give legal recognition to contractual obligation through electronic transaction.

The above circumstances will certainly give rise to a doctor-patient relationship. Further, the said relationship can be proved in the court of law through the above electronic record (e.g. exchange of e-mails, patient’s medical (electronic) record, online prescription by doctor, etc.).

Virtual Malpractice

Once the doctor–patient relationship is established, it is the responsibility of the doctor to provide due care and treatment, which is expected from the professional in the given circumstances.

Any violation made under the Telemedicine will be considered as a misconduct at the hands of the concerned RMP. As such if the misconduct is proved, the RMP may be reprimanded or have their registration suspended or cancelled.

Duty of care

The RMP  won’t be exempt from liability or prosecution from statutes affecting the RMP such as the Information Technology Act, 2002, and the Consumer Protection Act, 1986, etc. The RMP will be required to take stringent precautions to ensure that the standards of duty of care as prescribed is met since due to substantial reliance on digital medium for transmission of private information, the same would involve an element of risk for the RMP. Any act or omission deviating from the duty of care, may result in tortious liability on the grounds of medical negligence.
The ‘duty of care’ must be established in all telemedicine encounters to clarify responsibility(s) for the patient/caregiver as well as other involved healthcare providers. Healthcare professionals should clearly define their roles and responsibilities regarding the various aspects and extent of treatment.

Confidentiality & Privacy

The IT Act and other regulations on data privacy shall
be applicable on the RMP providing tele-consultation. 

All information shared by the patient shall be confidential and the RMP is required
to undertake reasonable degree of care in usage of platforms for maintaining such confidentiality.
RMP is required to log all details and maintain full record of the patient with respect to any documentation or information used for the consult and the prescriptions.

The right to privacy has been an integral part of medical ethics since time immemorial and is supported by various codes including the International Code of Medical Ethics.  Every individual has a right to privacy even in telemedicine. The onus for safeguarding this information has to be on the medical practitioner.

Conclusion

There is much hope for the future of telemedicine. With rapid advances in technology, telemedicine will become easier and more widely accepted in coming years.

The Guidelines do provide a much needed framework for the practice of telemedicine in India by providing the necessary clarifications and covering concerns relating to liability, consent, confidentiality and negligence. Hospitals and Polyclinics would need to ensure an house internal compliance committee similar on the lines of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to address issues of regulation concerning telemedicine based on the guidelines. 


* (Barrister) Advocate, Supreme Court, Partner at Jafa & Javali, Advocates, New Delhi.

[1] WHO. A health telematics policy in support of WHO’s Health-For-All strategy for global health development: report of the WHO group consultation on health telematics, 11–16 December, Geneva, 1997. Geneva, World Health Organization, 1998.

[2] Information Technology Act, 2000

[3] Information Technology (Amendment) Act, 2008

[4] 2018 SCC OnLine Bom 1841 

[5] Telemedicine Practice Guidelines  

[6] Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulations, 2002 

[7] Indian Medical Council (Professional Conduct, Etiquette and Ethics) (Amendment) Regulations, 2020 

[8] “Telemedicine and virtual consultation: The Indian perspective”, National Medical Journal of India, (Year 2018), Vol. 31, Issue  4, Pages 215-218


Image Credits: DeccanHerald.com

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and KM Joseph, JJ has asked Google India to face trial in a 2008 criminal defamation matter and has held that Section 79 of the Information Technology Act, 2000, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 of the IPC. Section 79 of the IT Act, prior to its substitution, exempted Network Service Provider from liability only on proving that the offence or contravention was committed without its knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention

The Court was hearing a matter relating to Criminal Defamation wherein an article was published by the Coordinator of Ban Asbestos India, a group hosted by Google, defaming the complainant, a public limited company engaged in the business of manufacturing and selling asbestos cement sheets with seven manufacturing plants and more than twenty-five marketing offices all over India. The article dated 31.07.2008 captioned “Visaka Asbestos Industries making gains”. It was, hence, argued that the asbestos cement sheets have been manufactured for more than 70 years in India, however, the complainant was singled out though there are other groups manufacturing asbestos cement products. Google India had argued that it was not the intermediary and that the intermediary is the Parent Company.

On this the Court held that, even proceeding on the basis that the first accused is the originator, as defined in the Act, of the allegedly defamatory matter, and the first accused is not only the author but is also the publisher of allegedly defamatory matter, and again proceeding on the basis that it is the appellant, who is the intermediary and not its Parent Company, the refusal on the part of the appellant to remove the post, may amount to publication. It said,

“there may be publication within the meaning of Section 499 of the IPC even in the case of an internet operator, if having the power and the right and the ability to remove a matter, upon being called upon to do so, there is a refusal to do so.”

Considering the facts of the case, the Court noticed that proceeding on the basis of the assumption that the appellant is the intermediary and that it stood alerted by the complainant by letter dated 09.12.2008, the appellant has not removed the offensive posts though it could technically remove it, therefore, it amounted to publication and this publication attracts Section 499 of the IPC.

The Court was, however, considerate of the fact that even in Section 482 of the Cr.PC, the court must qualify the right and the power of the appellant even assuming to be the intermediary to act freely as it would opposed to the principles which have been evolved in regard to the internet service provider that it is not open to it to unilaterally decide as to what matter should be removed and it can act so as to remove on the basis of the request only if there is a court order.

“Any other view would make it a despot strangling the free flow of ideas which is what the internet is all about.”

The Court noted that in Shreya Singhal v. Union of India, (2015) 5 SCC 1, the provisions were read down to mean that Section 79(3)(b) of the Act and Rule 3(4) of the Rules, would require an internet service operator to takedown third-party information not on mere knowledge of objection to its continuance but after there has been an impartial adjudication as it were by a court. However, in the facts of this case, the acts constituting the alleged offence under Section 499 of the IPC, were done not when Section 79, after its substitution, was in place. The Rules were enacted in the year 2011.

“In such circumstances, what we are asked to do is to import in the principles into the factual matrix when Section 79 was differently worded and in proceedings under Section 482 of the Cr.PC.”

The Court left open to the appellant to urge before the Court the question relating to the inability of the Parent Company to remove the post without the court order. The Court, however, said that this is a question which can be, independent of the non-availability of the protection under Section 79 of the Act in its erstwhile avtar, pursued by the appellant. The Court, hence, held,

 [Google India Pvt. Ltd. v. Visaka Industries, 2019 SCC OnLine SC 1587, decided on 10.12.2019]

Hot Off The PressNews

Supreme Court: On a plea challenging the notification authorising 10 central agencies to intercept, monitor and decrypt any computer system, the Court sought Centre’s response within six weeks.

According to the Notification dated 20.12.2018, the Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, the Central Board of Direct Taxes (for Income Tax Department), Directorate of Revenue Intelligence, Central Bureau of Investigation, National Investigation Agency, the Research and Analysis Wing, Directorate of Signal Intelligence (in service areas of J-K, North East and Assam) and Delhi Police commissioner are empowered under the Information Technology (IT) Act for computer interception and analysis.

Petitioner ML Sharma argues that the notification gives the state the right to access every communication, computer and mobile and “to use it to protect political interest and object of the present executive political party”. By way of this PIL, he has sought to prohibit the agencies from initiating any criminal proceedings, enquiry or investigation against anybody under the provisions of the IT Act based on the notification.

However, the Central government said the rules for intercepting and monitoring computer data were framed in 2009 when the Congress-led UPA was in power and its new order only notified the designated authority which can carry out such action.

(Source: PTI)

Hot Off The PressNews

As reported by media, a PIL has been filed in the Delhi High Court seeking regulation of content on online platforms such as Netflix, Amazon Prime Video, Hotstar, etc.

The PIL has been filed by an NGO named Justice for Rights Foundation for the purpose of removal of the content which is “uncertified, sexually explicit and vulgar” from the above-stated platforms as the content being streamed is in violation of the provisions of the Indian Penal Code (IPC) and the Information Technology Act.

Further, it has been stated by the petitioners that these online platforms offered vulgar, sexually explicit, pornographic, profane, virulent, religiously forbidden and morally unethical contents to attract more subscribers and generate profit.

The matter is listed for 14-11-2018.

[Source: The Pioneer]