Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and M. Nirmal Kumar, JJ., while addressing a PIL held that,

“With regard to visual media, there are no regulations in force except self-regulation.”

Present petition was filed with regard to seeking issuance of guidelines to

  • print media and visual media to the cautious presentation of the news items when it involves any news, update or information about COVID-19 disease and maintain strict confidentiality in not revealing about anyone infected by the COVID 19 including his family.
  • to take strict legal action against the ones who are spreading rumours and false information regarding COVID 19 in Social Media.

Petitioner alleged that, certain persons who belonged to a particular religion and attended the conference at Delhi and were found to be affected by COVID-19 Pandemic, names of those persons were published without their consent and without any authority and on account of the said fact they faced social stigma.

Adding to the above, petitioner specifically pointed out that the Muslim Community are worstly affected.

Bench stated that, 

As far as visual media is concerned, there are no regulations in force except self-regulation. There are no laws available as on today.

If the petitioner is so aggrieved, it is open to the petitioner to approach the Press Council of India and News Broad Casting Standards Authority and this Court also takes judicial notice to the fact that though all the entities are covered under the relevant Statutes, visual media does not comes under the ambit of the Statute and it is for the Government of India to look into the said aspect.

Referring to the Supreme Court decision in Sahara India Real Estate Corp. Ltd. v. SEBI, (2012) 6 MLJ 772, it was observed that in the said decision  Supreme Court declined to pass orders as to the framing of guidelines for visual media.

Thus, in view fo the above, Court concluded by saying that, it is not in a position to issue a positive direction as sought. If any individual is aggrieved on account of false information, they are entitled to avail the remedy through Common Law or Criminal Prosecution. [Adv. M. Zainul v. Chief Secy., T.N. Govt.,  2020 SCC OnLine Mad 975 , decided o 22-04-2020]

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The Editors Guild of India has noted with shock and concern the high-handed manner in which the law enforcement agencies in Jammu & Kashmir have used the prevailing laws to deal with two Srinagar-based journalists, Masrat Zahra, a young freelance photographer, and Peerzada Ashiq, a reporter working for The Hindu.

While only an FIR has been filed in connection with a report filed by Peerzada Ashiq, the authorities in the union territory have used the Unlawful Activities Prevention Act against Masrat Zahra.

Any recourse to such laws for merely publishing something in the mainstream or social media is a gross misuse of power. Its only purpose can be to strike terror into journalists. The Guild also believes that this is an indirect way of intimidating journalists in the rest of the country as well.

The journalists should be put to no harm or further harassment. If the government has any grievance against their reporting, there are other ways of dealing with such issues in the normal course. Mere social media posts of factual pictures can’t attract the toughest anti-terror laws passed for hardened terrorists. And in the case of The Hindu reporter, the correct course was to escalate the complaint to the newspaper’s editor.

The Guild demands that the Union Territory administration of Jammu & Kashmir withdraw the charges forthwith.


Editors Guild of India

[Statement dt. 21-04-2020]

Legislation UpdatesNotifications

The Press Council of India is a statutory, quasi-judicial authority set-up by an Act of the Parliament. It functions under the Press Council Act, 1978.

Section 14 of the Press Council Act,1978, empowers the Council to warn, admonish or censure the newspaper, the news agency, the editor or the journalist concerned or disapprove the conduct of the editor or the journalist if it finds that a newspaper or a news agency has offended against the standards of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct, on the receipt of complaint or otherwise.

Electronic media, TV news channels, social media i.e. Whatsapp/ twitter/Facebook do not come under the jurisdiction of the Press Council of India.

Complaints against and by the print media are adjudicated by the Council by adhering to the Press Council (Procedure for Inquiry) Regulations, 1979.


Press Council of India

[Press Release dt. 14-04-2020]

PR/9/2020-PCI

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Minister of Law and Justice, Ravi Shankar Prasad made a statement with respect to the “Reported Use of Spyware Pegasus to Compromise Phone Data of Some Persons through WhatsApp” as raised by the Minister of Parliament Digvijay Singh.

On 31-10-2019, there was news in Indian media reporting breach of data of few Indians via WhatsApp through spyware named Pegasus developed and marketed by an Israel based company namely NSO. The news also reported about a lawsuit filed by WhatsApp on 31-10-2019 in a Court at California, USA alleging that the Israeli NSO Group had targeted some 1,400 WhatsApp users globally with this spyware and had violated US and California laws as well as WhatsApp’s terms-of-service. The news report conveyed that more than 100 persons in India might have been affected by this Spyware. It has also been alleged by WhatsApp in their submission filed before the Court that the NSO Group has sold Pegasus spyware to government and private agencies.

In this matter, Ministry of Electronics & Information Technology (MeitY) took cognizance of the news reports and sought a report from the WhatsApp through an email sent to them on 1st November and seeking WhatsApp response by 4th November. WhatsApp sent a mail on 2nd November 2019 communicating the aspects relating to the exploitation of a vulnerability in their platform by spyware called Pegasus, developed by Israeli agency named NSO. As per WhatsApp, they had communicated this vulnerability to CERT-In on 20-05-2019 after it was detected and fixed in mid-May 2019.

As per WhatsApp, Pegasus was designed to be installed remotely on mobile devices using the Android, iOS, and BlackBerry operating systems. The NSO/Pegasus exploited vulnerabilities in operating systems and applications and used other malware delivery methods, like spear-phishing messages containing links to malicious code. According to media reports Pegasus could be surreptitiously installed on a victim’s phone without the victim taking any action.

“The Supreme Court has upheld privacy as a fundamental right. But the Supreme Court has also stated that a terrorist has no right to privacy; and the Supreme Court in the same judgment has also stated that a corrupt person has no right to privacy. Therefore, that is our Government’s commitment to the freedom of speech and expression on social media. Technology has brought empowerment. We need to understand that. But while technology creates opportunity, technology also creates challenges, and this privacy was the first challenge which the Supreme Court has already held. But, one thing we all need to understand. We all work under the overarching system of our Constitution where fundamental right freedoms are there, but, it is also subject to reasonable restrictions. Article 19(2) to (6) clearly says that in the interest of sovereignty and integrity of India, public order, friendly relations with foreign country, these can be reasonably controlled”.

“It is a coincidence that when the Government of India is pressing for traceability of offensive messages, America, Australia and England are joining that battle. Then suddenly a case is filed. We have not been given any name till date. We have given notice to CERT-In and sent a notice to them again. They have expressed their regret. We have said that we will audit your entire processes. We have also sent a notice to the NSO. A fight is going on in the US between The NSO and Whats App. It is their private battle where coincidentally names have come, including some of Indians.

The I.T. Act has a provision in which anyone can complain if he wants. Which has a fine of five lakh and a provision of three years’ imprisonment. Not even a single FIR has been filed till date. No complaint is made in the IT Ministry till date by anyone. But suddenly we find that the names come in the media and thereafter it becomes a political issue.

WhatsApp has not given us 121 names yet. Our view is very clear that whoever has a complaint, should file a case. The Government of India will help in that inquiry. But Government should not be involved into any phishing inquiry.


Rajya Sabha

Case BriefsSupreme Court

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]

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Supreme Court: While hearing Facebook Inc’s petition asking Supreme Court to hear all cases related to demands for linking Aadhaar to social media accounts and tracing the source of WhatsApp messages, the Court said that there has to be a balance between privacy and how to govern. The court, hence, issued notice to Facebook, Twitter, Google, YouTube, the centre and Tamil Nadu asking for their response by September 13 on whether the petitions should be transferred from high courts across India to the Supreme Court. Various cases are being heard by the high courts of Madras, Bombay and Madhya Pradesh and Orissa.

The Court said,

“There is a conflict between privacy and how the government should run the country when crimes are committed. There has to be a balance… under what condition information can be given and to whom,”

Facebook and WhatsApp, asking that all petitions be transferred to the top court, said it was a matter of high magnitude and affected the privacy of the entire nation.

On Monday, the Tamil Nadu government had told the Supreme Court that social media profiles of users need to be linked with Aadhaar numbers to check the circulation of fake, defamatory and pornographic content as also anti-national and terror material. However, Facebook Inc resisted the state’s suggestion on grounds that the sharing of the 12-digit Aadhaar number, the biometric unique identity, would violate privacy policy of users.

Facebook Inc said it cannot share the Aadhaar number with a third party as the content on its instant messaging WhatsApp was end-to-end encrypted and no one can access it.

The Tamil Nadu government, which is deep into a case related to the deadly Blue Whale game, argued that the centre was struggling to find out who the creator of the game was and who gives directions. Attorney General KK Venugopal, representing Tamil Nadu, said,

“Someone says he is a young person from Russia. A number of people have died in India playing the Blue Whale. Let the Madras High Court continue with its hearing,”

The Supreme Court said,

“We are aware of Blue Whale. What is happening in dark web is worse than Blue Whale. The idea of the Madras High court expanding the issue was that if need be, shouldn’t the intermediary inform the police about details of person for crime detection? We are not examining the merits of the case, only dealing with the transfer of the cases to the Supreme Court.”

(Source: NDTV)

Case BriefsHigh Courts

Punjab and Haryana High Court: While addressing a bail application under Section 439  CrPC, 1973, the Single Judge bench of Sudip Ahluwalia J., explained the fundamental nature and essence of the constituents that would amount to waging war in respect of social media platforms.

The brief facts of the case state that the petitioner was charged under Sections 121/121-A of IPC and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967.  For the charged offences petitioner claims that they are not established on prosecution material.

The contentions on behalf of the petitioner which have been placed before the court take reliance from the decision of the Apex Court in , Balwant Singh v. State of Punjab, (1995) 3 SCC 214, in which conviction was placed upon for the offences under Sections 124-A and 153-A Indian Penal Code, 1860 and was further set aside by stating that “The learned trial Judge, to say the least, seems to have drawn upon his imagination a course not permissible for a Court of Law.”

The counter placed on behalf of the State was that, petitioner’s involvement was not only in propaganda and inciting people to resort to violence leading to waging war against the Government of India, in fact, it also constituted provocative messages from leaders of terrorist groups based in Pakistan on social media/ facebook which is accessible to innumerable people around the world.

Therefore, the Hon’ble High Court on noting the facts of the case stated that in the present case the reliance placed by the petitioner on the case of Balwant Singh v. State of Punjab, (1995) 3SCC 214 would not be applied. In the instant case the incitement is on social media platform which is accessible to the world and not just a limited crowd as was the case in the relied case of the Supreme Court, further bail was not granted and the petitioner was stated to be liable under Section 122 of IPC which is at par punishable with Section 121-A for which he is already facing trial. [Arvinder Singh v. State of Punjab, 2018 SCC OnLine P&H 762, dated 01-06-2018]

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Supreme Court: In the plea filed by a man whose wife and daughter were allegedly gangraped in July last year on a highway near Bulandshahar, seeking transfer of the case to Delhi and lodging of an FIR against former Uttar Pradesh Minister Azam Khan for his controversial statement that the gangrape case was a “political conspiracy”, the bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to a five-judge constitution bench to decide the question as to whether a public functionary or a minister can claim freedom of speech while airing views in a sensitive matter which is under investigation.

The Court also expressed concern over the misuse of social media platforms and said that people disseminated wrong information even about the court proceedings. Senior Advocate Fali S. Nariman, who is assisting the bench as an amicus curiae, submitted before the Court that a lot of misinformation and abuses are there on social media platforms and he has stopped looking at them. To this, Senior Advocate Harish Salve added that he had deleted his Twitter account.

The Bulandshahar rape case happened on the night of July 29 last year when a group of highway robbers stopped the car of a Noida-based family and sexually assaulted a woman and her daughter after dragging them out of the vehicle at gun-point. Azam Khan had, in a public address, termed the entire incident as a “political conspiracy only and nothing else”. Harish Salve submitted before the Court that ministers cannot have personal views on official business matters as whatever the person says, must reflect government policy.

Last year, on 29.08.2016, the Bench of Dipak Misra and C. Nagappan, JJ had asked Fali S. Nariman to assist the Court in determining, inter alia, whether the fundamental right of speech and expression would be governed under reasonable restriction of decency or morality or whether other preferred fundamental rights would also have an impact on it.

Source: PTI