Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench comprising of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ. has held that representatives of Facebook will have to appear before the Committee on Peace and Harmony constituted by the Delhi Legislative Assembly. At the same time, the Court felt constrained to put certain fetters qua the exercise sought to be undertaken by the Committee.

The instant petition challenged the notices issued by the Committee directing the petitioners to appear before it. The Conclusion of the Court is delineated below, after which follows a detailed analysis of the controversy and the Court’s discussion and opinion.

(i) There is no dispute about the right of the Delhi Assembly or the Committee to proceed on grounds of breach of privilege per se.

(ii) The power to compel attendance by initiating privilege proceedings is an essential power.

(iii) Members and non-Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath.

(iv) In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of para 4(vii) of the Terms of Reference of the Committee taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made.

(v) Canvassing a clash between privilege powers and certain fundamental rights is also preemptory in the present case.

(vi) In any case, the larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger Bench in N. Ravi v. T.N. Legislative Assembly, (2005) 1 SCC 603.

(vii) The Delhi Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the Information and Technology Act, 2000.

(viii) The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on the ground governance being in the hands of the Delhi Government.

(ix) Para 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields.

Disruptive Potential of Social Media

In the opening paras, the Court noted that,

“[W]hile social media, on the one hand, is enhancing equal and open dialogue between citizens and policy makers; on the other hand, it has become a tool in the hands of various interest groups who have recognised its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation.

Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, more so as they are said to employ business models that are privacy-intrusive and attention soliciting. The effect on a stable society can be cataclysmic with citizens being ‘polarized and parlayzed’ by such ‘debates’, dividing the society vertically. Less informed individuals might have a tendency to not verify information sourced from friends, or to treat information received from populist leaders as the gospel truth.”

Later, the Court also said that the unprecedented degree of influence of social media necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must subserve the principal objective as a valuable tool for public good upholding democratic values. Our country has a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role.

Use of Algorithms and the Role of Facebook

The Court rejected the simplistic approach adopted by Facebook ─ that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information. The Court said that companies like Facebook cannot deny that they use algorithms (sequences of instructions) with some human intervention to personalise content and news to target users. The algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting replicated and reinforced. The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content.

Factual Context and the Writ Petition

The backdrop of the present case is set in the unfortunate communal riots in different parts of North-East Delhi in February, 2020. In the wake of these riots, the Legislative Assembly of NCT of Delhi resolved to constitute a Committee on Peace and Harmony to a “consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups.”

The Committee received thousands of complaints which suggested that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. This was further fuelled by an article published in the Wall Street Journal on 14-8-2020 titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” suggesting that there was a broad pattern of favouritism towards the ruling party and Hindu hardliners. The Article also made serious allegations of lapses on the part of Facebook India in addressing hate speech content.

Subsequently, the Delhi Assembly issued notice for appearance (“first summons”) to the Mr Ajit Mohan, Vice President and Managing Director of Facebook India. Mr Mohan was the first petitioner in the instant writ petition. The first summons highlighted the factum of numerous complaints alleging intentional omission and deliberate inaction on the part of Facebook in tackling hate speech online. It was clearly stated that he was being called as a witness for testifying on oath before the Committee on 15-9-2020. Significantly, no consequences in the form of breach of parliamentary privilege were intimated in case Mr Mohan refused to appear.

In its reply, Facebook objected to the first summons and requested to recall it. This was rejected by the Delhi Assembly, and a second summons was issued. It is at this stage that a perceived element of threat was held out to Mr Mohan stating that his refusal to appear was inconsistent with the law of privileges of a legislature (which extends to the Committee and its members). He was asked to appear before the Committee on 23-9-2020 in the “spirit of democratic participation and constitutional mandates.” Importantly, it was clearly stated that non-compliance would be treated as breach of privilege of the Committee and necessary action would be taken.

It is this second summons which triggered the filing of the instant proceedings under Article 32 of the Constitution of India. It was prayed that (a) the first and the second summons be set aside; (b) the Delhi Assembly be restrained from taking any coercive action against the petitioners in furtherance of the impugned summons. Notably, during pendency of the proceedings, the two summonses issued to Mr Mohan were withdrawn and a new summons dated 3-2-2021 was issued to Facebook India alone.

Analysis and Opinion

Contradictory stand in different jurisdictions not acceptable

“Facebook has the power of not simply a hand but a fist, gloved as it may be.”

The Court was not convinced by the simplistic approach of Facebook, and was of the view that the business model of intermediaries like Facebook being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the USA, Facebook projected itself in the category of a publisher, giving them protection under the ambit of the First Amendment of its control over the material which are disseminated in their platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand depending upon its suitability and convenience. The Court said:

Role of Facebook need to be looked into

Turning to the incident at hand, the Court said that the capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be. It is in this background that the Assembly sought to constitute a peace and harmony committee. The Assembly being a local legislative and governance body, it cannot be said that their concerns were misconceived or illegitimate. It is not only their concern but their duty to ensure that “peace and harmony” prevails.

Three broad heads

(a) Issue of Privilege

The privilege issue arose out of the plea advanced by the petitioners that both, the first and the second summons, were to summon petitioners with a threat of “privilege”. This argument was coupled with a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence/opinion that he is not inclined to state.

While on this, the Court noted that the wordings of Article 194(3) of the Constitution of India are unambiguous and clear. It was the Court’s opinion that it would be a monumental tragedy to conclude that the legislature is restricted to the function of enacting laws. The legislature debates many aspects, and at times records a sense of the House. This is not unusual or without precedent. Further, once the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws is recognised, any act in furtherance of this wider role and any obstruction to the same will certainly give rise to an issue of parliamentary privilege.

The Court saw no merit in the line of argument that no non-member could be summoned if they had not intruded on the functioning of the Assembly; or that the non-participation of the petitioner would not have adverse consequences as it did not disrupt the functioning of the Committee. The petitioners, more so with their expanded role as an intermediary, can hardly contend that they have some exceptional privilege to abstain from appearing before a committee duly constituted by the Assembly.

Noting that only a summons has been issued for appearance before the Committee and the question of any privilege power being exercised is yet far away; the Court observed:

“This case is a preventive endeavour by the petitioner to preclude the respondents from even considering the aspect of privilege by seeking this Court’s intervention at a pre-threshold stage, only on the premise of the absence of legislative power.”

The Court was not impressed by the argument that the privilege powers of the Assembly are not constitutional in character but flow only from the Government of National Capital Territory of Delhi Act, 1991. It was Court’s opinion that the scheme of privilege has to be seen in the context of provisions of Article 239-AA of the Constitution, as well as the GNCTD Act. They are not divorced from each other.

The Court held the power of the Assembly to summon in the format it sought to do is beyond exception and in accordance with law; and that the stage for any possible judicial intervention had not arisen in the instant case.

(b) Privileges, Free Speech and Privacy

Petitioners sought to pit the expanded right of free speech and privacy against privilege, emphasising that the petitioner had a right to remain silent. It was submitted that the mere threat of “necessary action” i.e., the possibility of a breach of privilege, was enough to infringe both the right to free speech and privacy. Thus, “the threatened invasion of the right” could be “removed by restraining the potential violator”.

The Court refrained from entering into any substantial discussion on this point, as such issue is also a subject of reference pending consideration before a 7-Judge Bench.

(c) Legislative Competence

This head dealt with the perceived remit of the Committee and whether the remit has the sanction of the Constitution in the context of division of subject matter under the three Lists of the Seventh Schedule. The bedrock of petitioner’s submissions was based on the alleged lack of legislative competence of the Delhi Assembly and consequently of the Committee to look into the subject matter qua which the notice had been issued to the petitioners. The submission, thus, was that in the absence of any such legislative competence, the petitioners were entitled to approach the Court at this stage itself rather than being compelled to wait for further progress in the proceedings.

On this, the Court reiterated the proposition that the division of powers between the Centre and the State Assemblies must be mutually respected. The concept of a wide reading of Entries (in the three Lists) cannot be allowed to encroach upon a subject matter where there is a specific entry conferring power on the other body. The Court was of the view that the recourse to Entries 1 and 2 of List III cannot be said to include what has been excluded from the powers of List II, i.e., Entries 1, 2 and 18. Similarly, Entry 45 of List III relating to inquiries would again not permit the Assembly or the Committee to inquire into the aspects of public order or police functions. That a law and order situation arose was not disputed by anyone, and that this law and order issue related to communal riots also could not be seriously disputed. That the Assembly cannot deal with the issue of law and order and police is also quite clear.

“Peace and Harmony” as opposed to “Law and Order”

The respondent’s argument was premised on a broader understanding of the expression “peace and harmony”, as opposed to it being restricted to law and order.

The moot point was whether the expression “peace and harmony” can be read in as expanded a manner as respondent sought to do by relying a on a number of Entries in List II and List III. The Court had no doubt that peace and harmony, whether in the National Capital or in a State context, is of great importance. But it would be too much to permit the argument that peace and harmony would impact practically everything and thus, gives power under different entries across the three lists.

The divergent contentions lead the Court to conclude that the Committee can trace its legitimacy to several Entries in List II and List III without encroaching upon the excluded fields of public order or police to undertake a concerted effort albeit not to the extent as canvassed by the respondents. Facebook cannot excuse themselves from appearing pursuant to the new summons issued to them on 3-2-2021. Areas which are not otherwise available to the legislature for its legislative exercise may, however, be legitimately available to a committee for its deliberations. This is so in the context of a broad area of governmental functions. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in the dual power structure in Delhi. The complexity of communal tensions and their wide-ranging ramifications is a matter affecting citizens of Delhi and it cannot be said that the Government of NCT of Delhi cannot look into the causal factors in order to formulate appropriate remedial measures. Appropriate recommendations made by the State Government in this regard could be of significance in the collaborative effort between the Centre and the State to deal with governance issues.

The Court was of the view that because of the pervasive impact of the riots, the Committee could legitimately attend to such grievances encompassing varied elements of public life. Thus, it would be entitled to receive information and deliberate on the same to examine their bearing on peace and harmony without transgressing into any fields reserved for the Union Government in the Seventh Schedule.

Terms of Reference of the Committee on Peace and Harmony

The Court discussed that a part of the Terms of Reference of the Committee on Peace and Harmony was clearly outside the purview of the powers vested with the Assembly. This problem was compounded by what transpired in the press conference held by the Chairman of the Committee. Speaking on behalf of the members of the Committee, the Chairman made certain statements that assume greater significance by virtue of being in the public domain.

While respecting the right of the Committee to the extent that there exists an obligation on the petitioners to respond to the summons, the Court was of the view that it could not permit the proceedings to go on in a manner that encroaches upon the prohibited entries. The Court did not seek to control how the Committee proceeds. In fact, the Committee was yet to proceed. But certain provisions of the Terms of Reference coupled with the press conference is what persuaded the Court to say something more than simply leaving it to the wisdom of the Committee to proceed in the manner they deem fit.

The Court found that para 4(vii) of the Terms of Reference was a troublesome aspect. It read: “(vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence”.

It was held by the Court that clearly it is not within the remit of the Assembly to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement of violence. This is an aspect purely governed by policing. It is the function of the police to locate the wrong doer by investigation and charge them before a competent court.

In order to justify the legislative competence and the remit of the Committee, the respondents practically gave up this para 4(vii) and the Court made it clear that this cannot be part of the remit of the Committee.  It was also recorded that by issuing the new summons which withdrew the earlier summons, fallacies in the notices stood removed.

Press-conference by Chairman of the Committee

The Court noticed that the statements made by the Chairman of the Committee during the press conference on 31-8-2020 could not be diluted or brushed aside. It was stated by the Chairman that the material placed before the Committee had resulted in a “preliminary conclusion”. Thereafter it was stated that “prima facie it seems that Facebook has colluded with vested interests during Delhi riots”. He further said: “Facebook should be treated as a co-accused and investigated as a co-accused in Delhi riots investigation”, and “As the issue of Delhi riots is still going in the court, a supplementary chargesheet should be filed considering Facebook as a co-accused”.

Such statements and conclusions, as per the Court, were completely outside the remit of the Committee and should not have been made. That it may give rise to apprehension in the minds of the petitioners could also not be doubted. Such statements are hardly conducive to fair proceedings before the Committee and should have been desisted from. This is especially so as that was not even the legislative mandate, and the Assembly or the Committee had no power to do any of these things.

Putting fetters qua the exercise undertaken by the Committee

In view of the aforesaid, while giving the widest amplitude in respect of inquiry by a legislative committee, the Court was constrained to put certain fetters in the given factual scenario otherwise tomorrow the proceedings itself could be claimed to be vitiated.

The Court said that the Committee cannot have a misconception that it is some kind of a prosecuting agency which can embark on the path of holding people guilty and direct the filing of supplementary chargesheet against them. This aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge.

In any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e. law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings.

The Court expressed its confidence that such an eventuality will not arise, given the important role that the Committee is performing and that it will accept the sagacious advice. So much and not further.

The writ petition was accordingly dismissed. [Ajit Mohan v. Delhi Legislative Assembly, Writ Petition (C) No. 1088 of 2020, decided on 8-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


 

Case BriefsForeign Courts

Supreme Court of The United States (SCOTUS): On April 1st, the 9 Judge Bench of the Court while looking into the allegations levelled against Facebook for violating the Telephone Consumers Protection Act, 1991 (hereinafter TCPA), held that the Court cannot rewrite the TCPA to update it for modern technology. Congress’ cho­sen definition of an autodialer requires that the equipment in question must use a random or sequential number generator. That definition excludes equipment like Facebook’s login notification system, which does not use such technology. The Court held that in order to qualify as an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.

The facts as they stood; popular social media platform Facebook, as a security feature, allows users to elect to receive text messages when someone attempts to log in to the user’s account from a new device or browser. Noah Duguid was sent such texts by Facebook which alerted him to a login his Facebook account linked to his mobile number. The twist in the tale came up when Duguid stated that he never created that particular account or for that matter any other account on Facebook.

Duguid tried unsuccessfully to stop the unwanted messages, and eventually brought a putative class action against Facebook. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages. Facebook contended that the TCPA does not apply because the technology it used to text Duguid did not use a “random or sequential number generator”. The Ninth Circuit’s however did not favour Facebook when it held that S. 227 (a) (1) of the TCPA applies to a notifica­tion system like Facebook’s that has the capacity to dial automatically stored numbers.

The Telephone Consumer Protection Act of 1991 (TCPA) forbids abu­sive telemarketing practices by, among other things, restricting cer­tain communications made with an “automatic telephone dialing sys­tem.” The TCPA defines such “autodialers” as equipment with the capacity both “to store or produce telephone numbers to be called, us­ing a random or sequential number generator,” and to dial those num­bers.

Perusing the facts and the relevant statutes, the Court observed that the issue is that whether the clause “using a random or se­quential number generator” in S. 227(a)(1)(A) modifies both of the two verbs that precede it (“store” and “produce”), or only the closest one (“produce”).  The former interpretation was adopted by Facebook in the matter. The Court noted that the most natural reading of the text and other aspects of S. 227(a)(1)(A) confirms Facebook’s view-

  1. In an ordinary case, the “series-qualifier canon” instructs that a modifier at the end of a series of nouns or verbs applies to the entire series.
  2. The modify­ing phrase immediately follows a concise, integrated clause (“store or produce telephone numbers to be called”), which uses the word “or” to connect two verbs that share a common direct object (“telephone num­bers to be called”).
  • The comma in S. 227(a)(1)(A) separating the modifying phrase from the antecedents suggests that the qualifier applies to all of the antecedents, instead of just the nearest one.

The Court further observed that the text of TCPA confirms that the statute’s definition of “autodialer” excludes equipment that does not use a random or sequential number generator. “Congress found autodialer technology harmful be­cause autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity. Facebook’s interpretation of S. 227(a)(1)(A) better matches the scope of the TCPA to these specific concerns”. The Court noted that even though Duguid broadly construed the TCPA vis-à-vis privacy, however, the Congressional intent was clear about intrusive telemarketing practices, which is why the Congress ultimately chose a precise autodialer definition. [Facebook Inc. v. Duguid,  2021 SCC OnLine US SC 2, decided on 01-04-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., grants ad-interim injunction while restraining defendant from posting, publishing, sharing any content which is defamatory, derogatory or deprecatory in nature to the plaintiff, its management or employees.

The instant suit was filed by the plaintiff Whitehat Education Technology (P) Limited impleading Aniruddha Malpani as the defendant, inter alia, seeking permanent injunction restraining the defendant from defamation, infringement of trademark, dilution and tarnishing of trademarks, disparagement, damages, unfair competition etc.

Plaintiff claimed to be a start-up company teaching children the Coding, helping them build Games, Animation Apps. Further, the plaintiff submitted that it has developed a Proprietary Coding Curriculum focused on product creation and imparts lessons through live, interactive online classes.

According to the plaintiff, free classes are given to the students and on satisfaction, the students can then enrol themselves where there is no time-limit for the classes and even after availing few classes, if the students want to opt-out, the balance fee is refunded on the same day.

Plaintiff owns and operates a website under its domain name www. whitehatjr.com registered on 23-05-2018 and claims a strong presence on social media. Plaintiff has registered trademarks ‘WHITE HAT JR’ both as a wordmark and device marks.

Adding to the above, plaintiff submitted that in late September 2020, the plaintiff came across the defendant’s posts on Twitter referring to the registered trademarks of the plaintiff ‘WHITE HAT JR’ and issuing statements/posts amounting to defamation/disparagement/trademarks’ infringements, dilution and tarnishment of its trademarks.

Defendant submitted that the instant suit was not maintainable for want of territorial jurisdiction and added that it has not caused any defamation, derogation or its statements being deprecatory, for which the defendant needs to file his affidavit to present the correct facts.

Bench held that since some of the facts are alleged in the plaint are disputed and the same is required to be adjudicated, therefore at the present stage, a limited ad-interim injunction is required to be passed on plaintiff’s prima facie case resulting in an irreparable loss to the plaintiff as also keeping in view the balance of convenience lying in favour of the plaintiff.

Hence, the defendant is restrained from posting, publishing, sharing any content which is defamatory, derogatory or deprecatory in nature to the plaintiff, its management or employees.Defendant was also directed to take down the tweets.[Whitehat Education Technology (P) Ltd. v. Aniruddha Malpani, 2020 SCC OnLine Del 1616, decided on 24-11-2020]

OP. ED.SCC Journal Section Archives

Abstract

The internet is one of the most used and innovative additions in the lives of people in this modern world. With the arrival of social media, the internet took socialising to a whole new level because initially it became the medium of sharing thoughts and soon grew into a medium of official communication between people and people, government and government and government and people. With all sorts of information on the social media, humour is one of the biggest user-generated and shared content. The internet brought the expression of humour in the form of satire, sarcasm, and wit with social media posts on the fingertips and memes all over the place, bringing out the dark sense of humour hidden in people as well. Getting in trouble for humour isn’t new, but with the vast reach of the internet, people posting from one corner of the country and someone getting immediately offended from another corner of the country has become common. This opens room for debate on the questions like ‘How can someone be arrested for a joke?’, ‘How can a joke be criminal?’, ‘Should law take social media seriously?’, ‘Is arresting for a social media post a violation of free speech?’ and ‘Do we really need laws to monitor everything on social media?’

The present elaborated discussion is a study of various cases in India related to humour and social media and observes how humour is used as a tool to commit crimes, and how laws are used against them, reasonably and unreasonably. It also observes the nature of people over the internet and how it affects their real lives. It also studies the laws present in India to analyse what the country requires in order to prevent the misuse of both, the laws and the social media, and in the end, concludes with a suggestion of separate Media Law and why it is necessary.

INTRODUCTION

Humour is to speech what salt is to food”.1

The internet is “a cooperative message-forwarding system linking computer networks all over the world”.2 The rise of the internet has given a new platform to the people and has grown enough to become a part of reality. From a common citizen’s social media profile to official government notifications being released on websites, with the passage of time, the internet not only remains a source of information and education, but also of global trade & commerce, of personal and professional connection, and of charity & crime.

The swiftness with which the internet has integrated into the lives of people, it would not be wrong to state that it is now an extension of their own personality. Due to the degree of anonymity and vast reach it provides, it brings out the untamed selves of people, which can be closely associated with what Sigmund Freud referred to as the Id,3 making the internet the “Wild West”.4 “Researchers assume that analysis of comic texts provides us with important insights about what is lurking in the social mind behind the façade of platitudes, conventions, and political correctness”.5 One of the basic reasons behind this is that, over the internet, there exists a very low chance of face to face backlash. Even though countries across the world have taken steps to counter it,6 a complete success in preventing Cybercrime is nowhere in sight.

Along with all types of content, the internet has now also become a platform for sharing humour in an electronic form, which can be done in the form of texts, images, videos or other formats. “Rather than light-hearted entertainment, jokes are in fact important arenas in which sensitive and troubling issues are processed and negotiated”.7 Sigmund Freud happens to be the most important authority on jokes and he called them “a combination of [comic] technique and [humorous] thought”.8 Another popular term on the internet in terms of humour is ‘Memes’. The term meme was coined by Richard Dawkins in his book ‘The Selfish Gene’. The Oxford Dictionary defines meme as “An element of a culture that may be considered to be passed on by non-genetic means, especially, imitation”.9 The term is basically associated with pictorial or video jokes, perhaps because they (as a form of presentation of humour or idea), grew on the internet the most, where they spread, most of the times as a trend, through immediate sharing or imitation.

[Read more]


Note: This Article was first published in RMLNLU CMET Law Journal 6 CMET (2019) 77.  The extract has been reproduced with the kind permission of RMLNLU.

* Student, BA LLB (Hons), KIIT School of Law Bhubaneswar, Odisha.

1 ‘Political Satire in Modern India’ (The Hindu, 6 April 2018) <https : //thehindu.com/thehindu/lr/2003/04/06/stories/2003040600010100.htm.> accessed 14 January 2019.

2 Douglas A Downing and others, Dictionary of Computer and Internet Terms (10th edn, Barron’s Educational Series Inc US 2009) 256.

3 Sigmund Freud, The Ego and the Id (first Published 1923, Courier Dover Publication 2018) 8.

4 Megan Carpentier, ‘Online Abuse : How Different Countries Deal with It’ (The Guardian, 12 April 2016) <https : //theguardian.com/technology/2016/apr/12/online-abuse-how-harrassment-revenge-pornography-different-countries-deal-with-it.> accessed 15 January 2019.

5 Limor Shifman and Dafna Lemish, ‘“Mars and Venus” in Virtual Space : Post-feminist Humor and the Internet’ (2011) 28 (3) Critical Studies in Media Law 253, 254.

6 The Guardian (n 257).

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has issued notice in a PIL filed seeking directions for formulation of laws to control the circulation of illicit content including sale of obscene and pornographic material inclusive of Child Sexual Abuse Material (CSAM), rape videos and revenge porn on social media platforms.

The plea filed by two law students from Bharati Vidyapeeth (Deemed to be University)’s New Law College, Pune, Abhyudaya Mishra and Skand Bajpai, also seeks formulation of laws to regulate social media access of minors and setting up of an efficient profile verification mechanism.

The petition states that there has been a market established wherein people are involved in the purchase, sale and transmission of obscene material and many such accounts are public accounts which defeats the purpose of “Age Appropriate Content Policy” of the intermediaries.

“When one gets reported or blocked a new one is created mentioning “Old account blocked, hence new one”. This shows scarce regard to law.”

The plea also refers to a report filed by an NGO named India Child Protection Fund in April, 2020, which stated that there has been a surge in the search for keywords like ‘Child porn’ on the internet.

“… 18% individuals exhibited explicit intent for videos where children were choking, bleeding, tortured, in pain or screaming. The demand for this kind of content grew as much as 200% during the project duration. The report also claims that a large number of individuals were found to be concealing their location and criminal activity by using virtual private networks (VPNs) to circumvent government regulation and platform security.”

Highlighting the issue of ‘revenge porn’, the petitioners state that the concept has been prevailing since 2010 and though several Nation States have expressly criminalised revenge porn in their territories, however in India there exists no such legislation.

“The evil of revenge porn and the trade relating to the private graphic information of individuals on social media violates the right to privacy of those affected.”

The petition further states that no minimum prescribed age or any other provision regarding minors’ access to social media has created a situation wherein any material is available for access to any age group, and given the subject matter of this petition, it portrays a disturbing side of these platforms. These minor children fall an easy prey and are often manipulated and exploited by the predators on these social media platforms.

“As per the terms and conditions of Facebook, an individual aged not less than 13 years or any other lawful age as per law applicable can hold an account on their platforms. Individuals agree and provide consent for several conducts on such platforms, however in India any person below the age of majority cannot give a valid consent, there is no law governing age eligibility for using social media in India.”

It is further stated that under Rule 5 of the Information Technology (Intermediaries Guidelines) Rules, 2011, the intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource and also remove non-compliant information in case of non-compliance of Rule 3 that creates several obligations on the intermediaries. However,

“Even though this mechanism is in place, it has had no or very little impact on the transmission and access to the non-compliant information, barring of account under Rule 5 has no impact on the physical or human user of the account and they often create another account as mentioned in paragraph 3 herein, this may create an endless vicious cycle. This suggests the outburst of unverified and fake media profiles along with a number of catfish accounts already prevailing for ulterior motives on social media.”

The petition also seeks a direction to the Government to notify and enforce the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 and also to include sex education in school curriculum in order to spread awareness regarding the issue. It states,

“Lack of knowledge amongst individuals regarding the functioning of these platforms, associated risks and the security features has made these platforms felicitating exploitation of many, dedicated efforts are required to spread awareness on this subject.”

[Skand Bajpai v. Union of India, Writ Petition(s)(Civil) No(s). 799/2020, order dated 13.10.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and Madhav J. Jamdar, J., while addressing the instant Public Interest Litigation made an observation that,

Right to freedom of speech and expression cannot be exercised to sow seeds of hatred and to create disharmony among religious communities.

Since infammatory posts/messages have the potential of disturbing public peace and tranquility, strong action ought to be taken against those responsible to uphold the high values aimed at by the Constitution.

Communal Disharmony

It has been alleged that Abu Faizal has been posting objectionable video clips as well as offensive messages on YouTube, Facebook and other social media sites which have the potential of creating communal disharmony, a sense of enmity between Hindus and Muslims.

Police has been inactive in getting such posts removed after urging them to do so through the complaint.

In May, this Court had passed an order asking respondents to file an affidavit-in-reply.

Such order further directed investigation against the said Abu Faisal if the substance were found in the allegations made by the petitioner against him. Also, the respondents were directed to block the video uploaded on social media.

Since no step was taken by police, the said Abu Faisal has felt encouraged to post objectionable video clips/offensive messages one after the other with an intention to create unrest.

An FIR was registered by Hyderabad city Cyber Crime Cell against the said Abu Faisal under Section 153-A/269/188/505(1)(b)/505(2) of the Penal Code, 1860 read with Section 67 of Information technology Act, 2000 and during the investigation, it was found that the accused is presently in Dubai.

What did the petitioner seek in view of the above-stated facts?

Petitioner seeks orders on the State and its police force to prevent the commission of cognizable offence by the said Abu Faisal and to take steps for deletion of the offensive video clips/messages, as well as for direction on the respondents 4 to 6 to permanently block the access of the said Abu Faisal to the relevant social media sites.

It is in terms of the power conferred by Section 69A (2) of the I.T. Act that the Rules of 2009 have been framed. Such rules contain a comprehensive procedure for blocking access to information by the public.

Decision in Shreya Singhal v. Union of India, (2015) 5 SCC 1 says that there are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by the competent Court.

In view of the above, Court held that neither the State nor its police force can issue a blocking order; it is left to the discretion of the designated officer under the 2009 Rules.

Further, the Court added that insofar as direction on the private respondents to permanently block the access of the said Abu Faisal to their corresponding social media sites is concerned, bench refrained from making any direction but left it free to the private respondents to regulate their affairs and make such exclusion as would be desirable for strong reasons of public policy of India and the integrity of the State.

The duty entrusted upon the police by Sections 149 and 150 of the CrPC to prevent the commission of cognizable offence has to be preceded with knowledge or information of a design to commit a cognizable offence.

However, in the present matter, without having any prior knowledge or information of any design of the said Abu Faisal and the probable time to commit cognizable offence by posting objectionable video clips/offensive messages and without being empowered to block access of the said Abu Faisal to social media sites, it may not be possible for the police to prevent a cognizable offence being committed by him.

Hence in view of the above, PIL was disposed of with a parting observation that,

“…People may exercise some degree of restraint on their liberty of free speech and expression particularly during these testing times.”

“…it is time that the State introduces a regime of conduct with stricter norms but satisfying the test of reasonableness, in the exercise of the power conferred by Article 19(2) of the Constitution, to deal with the rapid rise of absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages on the social media.”

[Imran Khan v. State of Maharashtra, PIL-CJ-LD-VC-23 of 2020, decided on 21-08-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J., while granting bail and directing to adhere bail conditions added a condition with regard to  “digital detoxification” wherein the applicant needs to stay away from Facebook and Whatsapp for 2 months.

Applicant filed the first application under Section 439 CrPC for grant of bail for the offence punishable under Sections 323, 294, 506/34, 327 and 329 of Penal Code, 1860.

Applicant’s Counsel submitted that a false case had been registered against him due to which he has been suffering confinement.

Further, he added that in these times of pandemic, his case is sympathetically considered. Even otherwise he learned the lesson hard way and would mend his way and would become a better citizen.

Confinement amounts to pretrial detention and further he undertakes to abide by all the terms and conditions of guidelines, circulars and directions issued by Central Government, State Government as well as Local Administration regarding measures in respect of COVID-19 pandemic. He also adds that the applicant intends to perform community service.

Court in view of the present times and on considering the peculiar fact situation stated that the applicant deserves to be released on bail.

Hence on furnishing a personal bond of Rs 50,000 along with one solvent surety of like amount, the applicant will be released and adding to the same he will have to install Arogya Setu App.

Jail authorities are directed to conduct his preliminary cronoa virus test.

After release, Court further directed the applicant to strictly follow all the instructions which may be issued by the Central Govt./State Govt. or Local Administration for combating the Covid-19.

Compliance of the following conditions by applicant is required:

  • Applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to the Police Officer.
  • applicant shall not commit an offence similar to the offence of which he is accused
  • applicant will not be a source of embarrassment or harassment to the complainant party in any manner and applicant will not seek unnecessary adjournments during the trial
  • applicant will not leave India without previous permission of the trial Court/Investigating Officer
  • Applicant shall not move in the proximity of the complainant and would always cooperate in the trial. He would not tamper the evidence and witnesses of the case.
  • Applicant shall remove himself from the WhatsApp and Facebook group and other Social Media groups for next two months and would not be present on any social media platform at all for two months for digital detoxification for personal reasons or for other reasons.
  • Every month applicant shall have to submit report about his digital detoxification at the police station concerned.

In view of the above, the application was disposed of. [Harendra Tyagi v. State of M.P., 2020 SCC OnLine MP 1684, decided on 04-08-2020]

Case BriefsHigh Courts

Kerala High Court: P. V. Kunhikrishnan, J., addressed a matter wherein a mother uploaded a video on social media wherein she was getting painted by her two minor children and the purpose to do so was to teach sex education to them. In the said matter, Court made the observation that,

“If the mother would have done the same act without uploading the video on social media, it would have been still understood and not considered an offence, which is not the case now.”

Petitioner a mother of two minor children asked them to paint her naked body above the navel. The video was recorded of the said act and uploaded on social media with the heading — “Body Art and Politics”.

Child Pornography

Cyber dome, Kochi City Police on discovering the said video submitted the report before the Inspector General of Police and Commissioner of Police, Kochi stating the said to be “Chid Pornography related crime” on social media.

The said offence was registered under Section 13, 14 an 15 of the Protection of Children from Sexual Offences Act, 2012 and under Section 67 B(d) of the Information Technology Act, 2000 alongwith the allegation of Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Battle against body discrimination

Petitioner’s submission is that she is an Activist and has been fighting her battle against body discrimination. The petitioner submitted that, it is her firm belief that, there needs to be openness so far as the discussion on body and body parts is concerned, and there is nothing to be hidden within and outside the family about the same. According to the petitioner, the children should be given sex education, and they also need to be made aware of the body and body parts as well. In which event, they would mature themselves to view the body and body parts as a different medium altogether rather than seen it as a sexual tool alone.

Petitioner added that,

“…morality of the society and public outcry cannot be a reason and logic for instituting a crime and prosecuting a person.”

A write up was also added with the said video, according to which the intention of the petitioner was clear and hence in view of the same no offence could be made out against the petitioner.

A small snapshot of the written text by the petitioner:

“In a moral fascist society that look towards the female body as mere illusions. Exposing the views which the society seek to conceal is also a political Act. In today’s society where a female is restricted or Censored from opening her mouth or utter a word with regards to Nudity or Sexuality, brave political act against it is what time demands. When Compare to Male body, Feminine body and her Nakedness has been considered as a mere 55kg of Flesh is just because of the wrong Sexual Education put forward by our society. Society has Customized the Mindset of people in such a way that while looking at a woman who wear a legging make you Sexual arousal whereas the man Stands Macho with his Chest-Hair Exposed as well as showing naked legs by folding the dhoti he wears as a statuesque, doesn’t Connect to Sexual Arousal is just because of the wrong sexual consciousness that is currently being injected by the society. Just as beauty is in the eye of the beholder, so is obscenity in the eyes of the beholder.”

Petitioner’s counsel relied on the judgments of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) and in Samaresh Bose v. Amal Mitra [(1985)4 SCC 289] to contend that, there is no indecency or obscenity even if the entire allegations against the petitioner are accepted.

Decision of the Bench

Court stated that according to the petitioner she was teaching sex education to her children by uploading the video. It added that if the mother was doing these activities inside the four walls of her house the situation could have been understood, as it is the freedom of every mother to teach sex education according to her will if it is not forbidden by law.

“Whether such a video can be uploaded in social media and the petitioner can escape by saying that she was trying to teach sex education to all children is the question to be decided.”

“Whether any offence is attracted in such cases, is the question.”

In accordance to Section 13 of the POCSO Act, whoever uses a child in any form of media for the purpose of sexual gratification, it is punishable under Section 14 of the Act.

Main ingredient of the above Section:

“…the child should be used in any form of medium for the purpose of sexual gratification.”

Prima facie, Court was of the opinion that the petitioner used the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they were seen painting the naked body of their mother.

Court on watching the video states that the expression of the mother when both the children painted her breast was also important — Whether that amounts to the use of the children for the purpose of sexual gratification can be finally decided only after a custodial interrogation of the petitioner.

Bench further adds that, the Explanation to Section 13 clearly states that the expression of ‘use a child’ shall include involving the child through a medium like print, electronic, computer, or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.

In view of the above Court stated that it is not a position to say that no offence under Sections 13,14 and 15 of the POCSO Act is attracted.

Section 67B(d) of Information Technology Act, 2000

Section 67B(d) of the Information Technology Act says that whoever facilitates abusing children online shall be punished. Petitioner asked her children to paint on her naked body. Thereafter, the petitioner uploaded the video in social media, hence in view of the said, in Court’s opinion, prima facie it cannot be ruled out that no offence under Section 67B(d) of Information Technology Act, 2000 is made out.

Investigating Officer shall investigate upon such matters as stated above.

Bench in view of the above stated that,

After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video.

Bench on applying its judicial mind stated that it is not in a position to say that there was no obscenity in the video and added that the said observation was only for the purpose of present bail application.

While parting with the present order, Court added to its conclusion that,

The children are not born with a moral compass and it is the job of parents, especially of the mother, to build that compass for them. Be responsible enough to teach and demonstrate the values that your kids need in order to grow up as decent human beings.

“…in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that, the mother will be the window of the child to the world.”

The petitioner feels that, she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then uploading the same in social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.

In view of the above Court dismissed the bail application of the petitioner. [Fathima A.S. v. State of Kerala, 2020 SCC OnLine Ker 2827, decided on 24-07-2020]

Fact ChecksNews

A screenshot of an advisory issued by Indore DIG has been doing the rounds on social media. The order in the screenshot advises all police personnel of Indore to uninstall 52 Chinese apps on their phone from Google Play Store and Apple IOS. The order states that as per information from the Ministry of Home Affairs, there is a threat that the user’s personal and other information could be stolen by installing and using such apps.

The screenshot of the order can be seen below:

This story has also been covered by some news websites such as

  1. https://www.bhaskar.com/local/mp/indore/news/remove-china-apps-indore-dig-harinarayanachari-mishra-order-to-delete-50-chinese-mobile-apps-127426076.html
  2. https://www.amarujala.com/madhya-pradesh/indore-dig-issued-a-list-of-chinese-apps-which-can-stole-data-and-asked-to-uninstall-them

Let us check the veracity of such claims. The Times of India has reported that such an order was in fact released by the Indore DIG, however it was withdrawn a couple of hours later. The article quotes DIG of Indore Mr Harinarayan Chari Mishra stating

We have to add a few more apps in the advisory after which it will be reissued” [1]

In the same article, IG Vivek Sharma was quoted saying that

“Such advice of technical nature is generally rendered by agencies like CERT-In. Since the order had an equivocal semblance of being directed towards the general public and not towards the closed organisational rank and file, it was recalled. Moreover, such orders of a pervasive nature are generally issued at state level after due consideration, and not by districts individually.”[2]

Therefore, we can safely conclude that the advisory being shared on social media regarding uninstalling Chinese apps was issued by DIG of Indore, however it was later withdrawn.

 


Nilufer Bhateja, Editorial Assistant has put this story together

[1] https://timesofindia.indiatimes.com/city/indore/indore-dig-withdraws-order-on-chinese-apps/articleshow/76475280.cms

[2] Ibid

Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J., while addressing a bail application held that,

social media has created a panic situation where a social divide is being brought in the minds of the general public on the basis of the communal identification of a group of persons.

Background of the Case

Respondent-Police alleged that when some persons had approached the Sub-Inspector of police showing a video clip on his phone wherein it was seen that 2 persons were picking up watermelons from a drain.

Petitioners admitted to Sub-Inspector of Police that they are the two persons found in the video clipping. Though petitioners denied that they have indulged in any offence or activity which would cause any danger either to themselves or to the public to whom the water melons were being sold.

Offences punishable under Sections 270, 328 read with Section 34 of Penal Code, 1860 were registered against the petitioners.

Petitioner approached the Court for bail under Section 439 CrPC.

Submissions [SECTION 328 of PENAL CODE, 1860]

Petitioner Counsel submitted that even assuming petitioners were picking up water melons from a drain and were selling the same to the public, Section 328 of IPC is not attracted. 

Section 328 IPC: “…If a person administers or causes another person to take any poison or any stupefying, intoxicating or unwholesome drug, with intent to cause hurt to such person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, he or she is guilty of the offence.”

Adding to its submissions, it was further submitted that, the water melons had fallen off into the open drain where there was no stagnant water or running drainage water, an impression is created as if the petitioners have wantonly dipped the water melons in the drain water and put up the same for sale to the general public which would cause serious health issues to persons who consume such water melons.

Bench

Court found substance in the arguments placed by the petitioners.

“Court is not oblivious of the circumstances under which the Police have sprung into action noticing the content of the video clipping.”

Bench further added that the social media has created a panic situation where a social divide is being brought in the minds of the general public on the basis of the communal identification of a group of persons.

In Court’s opinion, the matter requires a trial then only the truth of the allegation could be tested.

On the face of the material available on record, it cannot be said that the provision of Section 328 could be attracted in the present facts and circumstances of this case.

Thus in view of the above stated reasons, petition is allowed with petitioners being enlarged on bail.[Sri Rihan v. State of Karnataka, Criminal Petition No. 2378 of 2020, decided on 29-05-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division bench of B.V. Nagarathna and M.G. Uma, JJ., dismissed a petition filed to call for records from the respondents with respect to any action taken by them in connection with the offences and violations specified in the petition, direct the respondents to take action in accordance with law against the media houses and political leaders who have done and continue to violate the law in impunity.

This present public interest litigation was filed by an unregistered organization called ‘Campaign against Hate Speech’, (CAHS), secondly by a social anthropologist, a former Professor at the National Institute of Advanced Studies, Bengaluru while the third petitioner is stated to be an accomplished researcher based in Bengaluru who is engaged in the work and analysis of issues pertaining to human rights and social justice.

Petitioner’s counsel, Harish B. Narasappa contended that the complaints have been made in the background of COVID-19 which has engulfed the world including India and in the context of the outbreak of COVID-19 pandemic there had been inciteful and irresponsible speeches and reports made by certain political personalities and also in media accusing certain sections of the society. He submitted that the said acts of inciteful speech and utterances in media, social media as well as by the political personalities amounts to hate speech.

Additional Advocate General, R. Subramanya countered the aforesaid arguments by stating that the writ petition was not in public interest at all and if any of the complainants had filed complaints by following the provisions of Criminal Procedure Code, 1973 and the same have not been acted upon, they have a remedy under the provisions of CrPC itself.

Additional Solicitor General for India M.B. Naragund, stated that it is not a public interest litigation but a “publicity interest litigation”.

The Court while dismissing the petition explained that some of the prayers were vague and the interim prayers which have been sought cannot be sought by filing a writ petition invoking Article 226 of the Constitution. The Court suggested that there were enough protection of substantive and procedural law to the aggrieved persons who think or consider certain speech to be hate speech to seek their respective remedies. Therefore, there is already a voluminous bundle of rights and remedies created in various enactments for aggrieved persons to complain against what they consider to be hate speech.

In the present scenario, since the Parliament has not yet thought it appropriate to legislate on the concept of ‘hate speech’, in this writ petition, in the absence of there being any definition of ‘hate speech’ as such, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot issue directions merely on the basis of impact of hate speech on the society in general or certain sections of the society in particular.

Further, relying on A.K. Roy v. Union of India (1982) 1 SCC 271, the bench held that it would be inappropriate for the Court to exercise its jurisdiction under Article 226 of the Constitution of India to direct either the Parliament or the State Legislature. [Campaign against Hate Speech v. State of Karnataka, 2020 SCC OnLine Kar 540 , decided on 13-05-2020]

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]

Hot Off The PressNews

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

Hot Off The PressNews

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]

Hot Off The PressNews

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]

Hot Off The PressNews

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