Case BriefsHigh Courts

Delhi High Court: A Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., dismissed the petition filed by a Lieutenant Colonel, Indian Army challenging the Social Media Ban Policy of Indian Army.

Lieutenant Colonel with the Indian Army filed a petition seeking a writ of mandamus directing respondents to withdraw their policy banning petitioners and other members of the Indian Army from using social networking platforms.

The said policy requires the petitioner and other members of the Indian Army to delete their accounts from social networking platforms like Facebook and Instagram.

Petitioner also sought a declaration that respondent 2 Director General of Military Intelligence is not empowered under the Constitution of India or under any other law, to modify, amend or abrogate the fundamental rights of the petitioner and other members of the Armed Forces.

Bench on perusal of the policy as well as other voluminous documents, stated that the policy is:

  • an outcome of constantly evolving intelligence of security threats and assessment of security safeguards needed
  • to plug the gaps and meet the ever-threatening electronic and cyberinfrastructure
  • an outcome of the paradigm shift in the intelligence activities of hostile nations; increased popularity of various social media platforms; the vulnerability of unsuspecting military personnel
  • necessitated by the directives, instructions and policies issued from time to time, advising the military personnel to regulate the use of social media websites, failing to meet the threat
  • virtual impossibility to keep track of lacs of online profiles or to identify the fictitious enemy profiles
  • on assessment of the different modes adopted to honey trap, not necessarily in the conventional sense ;
  • an outcome of the assessment of the vulnerability of different social media platforms.

Further, Bench relied on the Supreme Court decision in Ex-Armymen’s Protection Services (P) Ltd. v.  Union of India (2014) 5 SCC 409, wherein it was held that (i) the decision on whether the requirements of national security outweigh the duty of fairness on a particular case is for the government and not for the Courts; the government alone have access to the necessary information and in any event, the judicial process is unsuitable for reaching decisions on national security; (ii) those who are responsible for the national security must be the sole judges of what the national security requires and it is undesirable that such matter should be made the subject matter of evidence in a Court of law or otherwise discussed in public; (iii) what is in the interest of national security is not a question of law – it is a matter of policy and it is not for the Court to decide whether something is in interest of State or not; and, (iv) once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party.

High Court on perusal of the impugned policy found the same be suffering from the vice of non-application of mind or being not based on any material on record or being without proper deliberations.

Court stated that it does not appreciates the pleading of the petitioner as a senior officer in the Army, of army personnel being treated as slaves and the government not trusting its army.

Court noted that warfare and inter-country rivalries and animosities today are not confined to accession of territory and destruction of installations and infrastructure of enemy countries but also extend to influencing and affecting the economies and political stability of enemy country including by inciting civil unrest and disturbance and influencing the political will of the citizens of the enemy country.

Hence, if the government on complete assessment has concluded that permitting the use of certain social networking websites by defence personnel enables the enemy countries to gain an edge, Court would be loath to interfere.

In view of the above, the petition was dismissed. [Lt. Col. P.K. Choudhary v. UOI, 2020 SCC OnLine Del 915, decided on 05-08-2020]


Brief News 

Delhi High Court dismisses the challenge to the Court’s Order wherein an Indian Army Personnel was directed to delete his social media accounts from “Facebook” and Instagram in consonance of the Social Media Ban Policy for Indian Army.

Earlier, a petition was filed impugning the policy of respondent 2 Director General of Military Intelligence, to the extent it bans the petitioner and other members of Indian Army from using social networking platforms like Facebook and Instagram.

To the said petition, Bench had stated that only after perusing the policy counsels be heard.

“we are of the view that the counsels be heard after we have had an occasion to peruse the policy and if the document prescribing the policy does not record the reasons therefor, the document containing the reasons for the policy.”


Read More:

Del HC | Indian Army’s policy of social media ban for its members to be submitted in a sealed cover for perusal of Court

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., directed the the Delhi Police to assure that the immediate removal of a law student’s pictures from the Pornographic Website should be done as the images were taken without her consent from the social media platforms.

Petitioner who is a law student from Bangalore complained that her pictures that she had posted on social media platforms ‘Instagram’ and ‘Facebook’ have mischievously and illegally been lifted and placed by respondent’s 6 and 5 — Pornographic website along with derogatory captions.

An online complaint to DCP-South on 11-07-2020 was filed, but no action was taken.

Petitioner’s counsel, Sarthak Maggon submitted that petitioner verily believes that respondent 5 is a spurious website, which carries pornographic content and which ought to have been banned and taken down from the world-wide web by the competent authorities.

Respondent 5 unauthorizedly and illegally in utter violation of the provisions of Information Technology Act, 2002 and Penal Code, 1860 placed the petitioner’s photographs on that website.

By reason of the inaction on the part of the authorities, these photographs have already received 15,000 views.

Rahul Mehra, Counsel for respondent 2/State of NCT of Delhi submitted that urgent and immediate steps would be taken to first take down the petitioner’s photographs that have been uploaded onto the errant website and subsequently necessary investigation will be carried out to trace and punish the offenders.

Bench directed that the complaint made by the petitioner be transferred to the Cyber Prevention Awareness and Detection Unit (CyPAD) of Delhi Police and that immediate action as assured be taken to remove the petitioner’s photographs from the errant website. Matter to be listed on 30-07-2020. [X v. UOI, 2020 SCC OnLine Del 761 , decided on 17-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of A.A. Sayed and M.S. Karnik, JJ., addressed a Public Interest Litigation, with regard to quashing and setting aside of an Order dated 23rd May, 2020 which prohibited any person or group of persons from dissemination of information through various messaging and social media platforms like WhatsApp, Twitter, Facebook, Tik-Tok and Instagram, etc. found to be incorrect and holding the persons designated as “Admin” personally responsible.

Deputy Commissioner of Police (Operations) in the affidavit-in-reply stated that the said Order was to remain in force till 8th June, 2020 and by efflux of time it came to an end.

In view of the above, Court dismissed the PIL while stating that if in future any such prohibitory order is issued, fresh PIL can be filed. [Geeta Seshu v. Commr. of Police, 2020 SCC OnLine Bom 769 , decided on 10-07-2020]

Hot Off The PressNews

The Delhi Commission for Women has taken suo moto cognizance of reports regarding a group called ‘Bois Locker Room’ operational on social media platform ‘Instagram’ which comprises of several hundred members.

The group is used for sharing objectionable pictures of minor girls and young women many a times with their personal information.

Members of the group have been reported to have discussed techniques of raping women and gang-raping minors.

Several other illegal acts and comments have been made on thr group. Commission is in receipt of several screenshots of the group wherein the handle names and the usernames are clearly visible.

In view of the same, DCW has instituted inquiry into the matter.

DCW issues notice to Delhi Police & Instagram.

Read More

Section 66-E of Information & Technology Act, 2000:  Punishment for violation of privacy

Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.

Section 354 C of Penal code, 1860: Voyeurism

Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.


Delhi Commission for Women

[Notice dt. 04-05-2020]

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J. while addressing a petition concerning the protection of the trademark ‘DA MILANO’, issued certain guidelines for the online intermediaries involved and held as follows:

“Role of Facebook and Instagram, insofar as posts put up by concerned third parties is governed by the Information Technology (Intermediaries Guidelines) Rules, 2011. Considering the provisions of the stated guidelines, online platforms which claim to be intermediaries not performing any active role in the posting of such information by 3rd party alleged infringers, have a duty only to take down the posts which are brought to their notice by plaintiff in terms of Section 79(3).

The above-mentioned guidelines along with Section 79(3) of the IT Act have been interpreted by a very significant Supreme Court case of Shreya Singhal v. Union of India, (2015) 5 SCC 1, “to mean that “any information received by the platforms would be by means of a Court order”.

In Shreya Singhal case, pertaining to Section 79 (3)(b), following was held which is relevant in respect to the present matter:

“Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.”

The facts in the present case are that the plaintiff who claims to be the owner of ‘DA MILANO’ filed a suit against the Defendants 1 to 4 in respect to seek permanent injunction, restraining infringement of trademark and passing off and under Section 74 of IT Act, 2000 seeking protection of the trademark ‘DA MILANO’.

It has been further stated that, Defendants 1 to 4 are alleged infringers who have posted on “Facebook” and “Instagram” advertising and offering to sell products bearing the mark ‘DA MILANO’. Plaintiff while seeking a permanent injunction against infringers impleaded the stated online platforms to ensure that posts comprising the infringing marks are taken down.

Trial Court, had sought the personal appearance of Facebook and Instagram in the present matter. Therefore, the grievance was the direction of personal appearance of the representatives of Facebook and Instagram.

Senior Counsel, Parag Tripathi, submitted that his clients are willing to comply with interim order which has already been passed and since the said defendants are not contesting the matter on merits against the plaintiff and are merely intermediaries; their personal presence is not required.

High Court on perusal of the facts and the guidelines mentioned above along with relying on the Supreme Court case of Shreya Singhal v. Union of India, (2015) 5 SCC 1, agreed on the fact that the stated platforms are mere intermediaries and have no active role in the matter, which therefore demands no personal appearance. Further, the following directions were issued:

  • Plaintiff shall inform Instagram and Facebook whenever they came across use of the mark ‘DA MILANO’ either in word form, logo or in any other form on their platforms.
  • Once such information is received, as per Rule 3(4) of the 2011 Guidelines, the said posts shall be taken down, within the timelines prescribed.
  • If platforms have any doubt as to the violative or offending nature of posts, they shall intimate the plaintiff.
  • Upon any order being passed by a Court of competent jurisdiction, the same shall be intimidated to the platform, which shall abide by the said order.

Thus, the suit is decreed against Facebook and Instagram in the above terms. [Facebook Inc. v. Surinder Malik, 2019 SCC OnLine Del 9887, decided on 28-08-2019]