Hot Off The PressNews

Delhi High Court: A petition was submitted before the High Court of Delhi by Whatsapp LLC with a prayer to issue a writ of mandamus or any other appropriate writ, direction, or order to declare that (i) Impugned Rule 4(2) is violative of Articles 14, 19(1)(a), 19(1)(g), and 21 of the Constitution, ultra vires the IT Act, and illegal as to end-to-end encrypted messaging services; and (ii) criminal liability may not be imposed for noncompliance with Impugned Rule 4(2) and any attempt to impose criminal liability for non-compliance with Impugned Rule 4(2) is unconstitutional, ultra vires the IT Act, and illegal.

Petitioner WhatsApp LLC (“Petitioner”) had filed this Writ Petition challenging the requirement in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”) that intermediaries like Petitioner enable “the identification of the first originator of the information” in India on their end-to-end encrypted messaging services (commonly referred to as “traceability”), upon government or court order. Petitioner respectfully submitted that this requirement forces Petitioner to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely. Petition challenges Rule 4(2) of the Intermediary Rules (“Impugned Rule 4(2)”) for the reason that,

  • it infringes upon the fundamental right to privacy without satisfying the three-part test set forth by the Hon’ble Supreme Court: (i) legality; (ii) necessity; and (iii) proportionality relying heavily on S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
  • violates the fundamental right to freedom of speech and expression, as it chills even lawful speech.
  • requirement to enable the identification of the first originator of information in India is ultra vires its parent statutory provision, Section 79 of the Information Technology Act, 2000 (“IT Act”)

What is impugned Rule 4(2)?

“A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the competent authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form: Provided that an order shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years: Provided further that no order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information: Provided also that in complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users: Provided also that where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.”

A more detailed explanation of how Petitioner’s end-to-end encryption system works was provided in its Technical White Paper.

In Central Public Information Officer, Supreme Court v. Subhash Chandra Agrawal, (2020) 5 SCC 481 it was affirmed by the Supreme Court that the right to privacy includes the right to anonymity.

Imposing a requirement to enable the identification of the first originator of information in India would undermine all of these benefits. For example, (i) journalists could be at risk of retaliation for investigating issues that may be unpopular; (ii) civil or political activists could be at risk of retaliation for discussing certain rights and criticizing or advocating for politicians or policies; and (iii) clients and attorneys could become reluctant to share confidential information for fear that the privacy and security of their communications is no longer ensured.

In  Ram Jethmalani v. Union of India, (2011) 8 SCC 1 it was held “fundamental rights cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems”.

In Shayara Bano v. Union of India, AIR 2017 SC 4609 the Hon’ble Supreme Court had held that laws are “manifestly arbitrary” in violation of Article 14 of the Constitution when they are “obviously unreasonable”, capricious, irrational, without adequate determining principle, or excessive and disproportionate and Rule 4(2)’s requirement to enable the identification of the first originator of information in India is “manifestly arbitrary”.

In its response to the contentions raised by WhatsApp, Union of India in its press release on Wednesday, said,

“Government respects the Right To Privacy and has no intention to violate it when WhatsApp is required to disclose the origin of a Particular message. Such Requirements are only in case when the message is required for Prevention, Investigation or Punishment of Very Serious Offences related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material”

With respect to Article 21, the press note said that no Fundamental Right is absolute. Moreover, the test of proportionality laid down in KS Puttaswamyv. Union of India,(2017) 10 SCC 1,finds full applicability in the present context.

Additionally, WhatsApp’s refusal to comply with the Intermediary guidelines is a “clear act of defiance” and an “unfortunate attempt to prevent the same from coming into effect”

The press note also points out the updated privacy policy of WhatsApp hinting their malafides; “At one end, WhatsApp seeks to mandate a privacy policy wherein it will share the data of all its user with its parent company, Facebook, for marketing and advertising purposes. On the other hand, WhatsApp makes every effort to refuse the enactment of the Intermediary Guidelines which are necessary to uphold law and order and curb the menace of fake news.”

Citing International practices and norms, it is added that, “In July 2019, the governments of the United Kingdom, United States, Australia, New Zealand and Canada issued a communique, concluding that tech companies should include mechanisms in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can gain access to data in a readable and usable format. Brazilian law enforcement is looking for WhatsApp to provide suspect IP addresses, customer information, geo-location data and physical messages. What India is asking for is significantly much less than what some of the other countries have demanded.”

Read the full Press Note: 

Click to access Press-Note-on-WhatsApp-HC-Case.pdf

[WhatsApp LLC v. Union of India, W.P. (C) NO. _______ OF 2021, dated 25-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For the petitioner: Mr Tejas Karia,Mr Pavit Singh Katoch for Shardul Amarchand Mangaldas & Co.

Also Read

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

 

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., addressed an interesting question regarding the validity of summons served through Whatsapp. The Bench stated, No doubt, the evolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons, the statutory provisions do not provide for service of summons through WhatsApp.

The petitioner was aggrieved by the non-bailable warrant issued against the petitioner for non-appearance before the Court. The specific case put forth by the petitioner was that the summons, alleged to had been sent through WhatsApp to his mobile phone, had never reached him, as he had not downloaded the WhatsApp application on his phone.

Section 62 of CrPC, dealing with the mode of service of summons, prescribe the following:
“62. Summons how served.

(1) Every summons shall be served by a police officer, or subject to such rules as the State government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.”

Going by Section 65 of CrPC, if service could not be effected as provided under Section 2, the serving officer shall affix one of the duplicates of the summons to the conspicuous part of the house or homestead in which the person summoned ordinarily resides.

The Bench stated, above provisions do not provide for service of summons through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, the insertion of Section 144 has been made in the Negotiable Instruments Act for the purpose of overcoming the delay in serving summons, which provide for service of summons by speed post or by approved courier service.

 In Indian Banks Assn. v. Union of India, (2014) 5 SCC 590, the Supreme Court had alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and had directed to issue summons by post as well as by email.

“In the case at hand, the summon was stated to had been issued through WhatsApp, which is not an accepted mode of service. As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.”

In view of the above, the petitioner was permitted to move an application for bail and the magistrate was directed to consider his application deeming the petitioner to have appeared on summons. The non-bailable warrant issued against the petitioner was directed to be kept in abeyance for a period of four weeks.[Anoop Jacob v. State of Kerala, Crl.MC.No.1658 of 2021, decided on 09-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Manoj P. Kunjachan

For the Respondent: PP T. R. Renjith

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Authority (SAT): A Coram of Tarun Agarwala, J. (Presiding Officer), Dr C.K.G Nair (Member) and M.T. Joshi, J.( Judicial Member) has set aside an order passed by SEBI’s insider trading charges against employees of stockbroking firm who had ‘forwarded as received’ messages on Whatsapp regarding unpublished quarterly results of leading companies.

The pertinent question involved was:

Whether a “forwarded as received” WhatsApp message circulated on a group regarding quarterly financial results of a Company closely matching with the vital statistics, shortly after the in-house finalization of the financial results by the Company and some time before the publication/disclosure of the same by the concerned Company, would amount to an unpublished price sensitive information under the provisions of Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015 (PIT Regulations, 2015).

The counsel for the appellant argued that merely passing of the information without any trading in the scrips of the concerned company, would not amount to a violation of PIT Regulations. Further, that the respondents failed to prove any preponderance of probabilities that the impugned messages were unpublished price sensitive information, that the appellants knew that it was unpublished price sensitive information and with the said knowledge they or any of them had passed the said information to other parties.

SEBI while answering in affirmation had penalised the appellant for releasing Unpublished Price Sensitive Information related to financial results of Asian Paints through WhatsApp messages. Besides, other analysts from other brokerages were also fined. The Adjudicating Officer in all the proceedings before him answered the question in the affirmative and imposed a 10 penalty of Rs. 1500000/, on the appellants in each of the proceedings.

The Appellate Tribunal refuting the same, was of the opinion, “…that merely passing of the information without any trading in the scrips of the concerned company, would not amount to violation of PIT Regulations…”. Also took note of the fact, “…that trading having possession of unpublished price sensitive information is prohibited. However, since Regulation 3, PIT Regulations, 2015, clearly prohibits passing of unpublished price sensitive information otherwise than for valid reasons. However, in the facts of the case, in our view, the respondents failed to prove any preponderance of probabilities that the impugned messages were unpublished price sensitive information, that the appellants knew that it was unpublished price sensitive information and with the said knowledge they or any of them had passed the said information to other parties. Resultantly the Coram set aside the order.[Shruti Vora v. SEBI, Misc. Application No.347 of 2020 and Appeal No. 309 of 2020, decided on 22-03-2021]


Counsel for the Appellants

Somasekhar Sundaresan with Kunal Katariya, Sahebrao Wamanrao Buktare, and Ravi Vijay Ramaiya, Chartered Accountant i/b. Shah & Ramaiya Chartered Accountants for the Appellant Shruti Vora.

 Kunal Katariya with Sahebrao Wamanrao Buktare, and Ravi Vijay Ramaiya, Chartered Accountant i/b. Shah & Ramaiya Chartered Accountants for the Appellant Neeraj Kumar Agarwal.

Pesi Modi with Kunal Katariya,  Sahebrao Wamanrao Buktare and Ravi Vijay Ramaiya, Chartered Accountant i/b. Shah & Ramaiya Chartered Accountants for the Appellant Parthiv Dalal.

 Deepak Dhane, with Ramakant Kini, i/b Sterling Associates for the Appellant.

Counsel for the Respondent

Zal Andhyarujina with Suraj Choudhary, Nidhi Singh,  Maithalli Parikh,  Kinjal Bhatt,  Hersh Choudhary, i/b. Vidhii Partners for the Respondent.

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The coram comprising of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) while addressing a very interesting matter with respect to WhatsApp’s updated policy, expressed that:

“…in a data driven ecosystem, the competition law needs to examine whether the excessive data collection and the extent to which such collected data is subsequently put to use or otherwise shared, have anti-competitive implications, which require anti-trust scrutiny.”

As per several media reports, WhatsApp updated its privacy policy and terms of service for WhatsApp users.

It was reported that the new policy made it mandatory for the users to accept the terms and conditions in order to retain their WhatsApp account information and provides as to how it will share personalized user information with Facebook and its subsidiaries.

In the present matter, both Facebook and WhatsApp will together be referred to as ‘Opposite Parties’.

Commission on noting the impact of policy and terms for WhatsApp users decided to take suo motu cognizance of the matter.

WhatsApp submitted that its current Terms and Service and Privacy Policy, as well as the proposed update in the same fall within the purview of the information and technology law framework and these issues, are currently sub judice before various courts and other fora in India.

Further, it was added that the examination of the 2021 Update by Courts and the Government of India is not merely limited to data protection/ privacy laws but extends to assessing more broadly whether the 2021 Update is in conformity with principles of fairness, public policy and national security considerations.

WhatsApp relied on the Supreme Court decision in Competition Commission of India v. Bharti Airtel Limited, (2019) 2 SCC 521, and stated that the said decision emphasized the need to maintain comity between decisions of different authorities on the same issues and held that the Commission should only exercise jurisdiction after the proceedings before the sectoral regulator had concluded and attained finality.

Bench noted that WhatsApp failed to point out any proceedings on the subject matter which a sectoral regulator is seized of.

“…Commission is examining the policy update from the perspective of competition lens in ascertaining as to whether such policy updates have any competition concerns which are in violation of the provisions of Section 4 of the Act.”

 Further, the Commission added that, it is obligated to ‘prevent’ practices having adverse effect on competition.

Whether the Ops have violated provisions of Section 4 of the Act?

 On what points has the Commission sought clarification?

  • The primary aim of the 2021 Update is twofold: (i) to provide users with further transparency about how WhatsApp collects, uses and shares data; and (ii) to inform users about how optional business messaging features work when certain business messaging features become available to them.
  • 2016 Update allowed existing users the option to opt-out of sharing their WhatsApp account information with Facebook Companies for ads and product experiences purposes. WhatsApp is continuing to honour the 2016 opt-out for anyone who had chosen it, and the most recent updates do not change that. If anyone who has previously opted out agrees to the 2021 Update, WhatsApp will acknowledge their agreement to the 2021 Update and also continue to honour the 2016 opt-out.
  • Privacy of personal messaging is integral to the growth and vision of WhatsApp. This commitment to keeping WhatsApp a safe and protected place where people can connect privately has not changed. WhatsApp cannot see users’ personal conversations with friends and family because they are protected by end-to-end encryption.
  • 2021 Update does not expand WhatsApp’s ability to share data with Facebook and does not impact the privacy of personal messages of WhatsApp users with their friends and family.
  • The 2021 Update provides more specifics on how WhatsApp works with businesses that use Facebook or third parties to manage their communications with users on WhatsApp. Even for users who choose to interact with a business on WhatsApp, the implications of such data sharing are minimal.

WhatsApp submitted that the 2021 Update raised no concerns from a competition perspective and the said Update aimed to provide greater transparency, hence no investigation shall be initiated.

Commission took note of the recent developments wherein the competing apps, i.e. Signal and Telecom witnessed a surge in downloads after the policy announcement by WhatsApp. However, apparently, it did not result in any significant loss of users for WhatsApp.

Comparison with Previous Policy| No opt-out option?

As per the previous policy, existing users were provided with an option to choose not to have their WhatsApp account information shared with Facebook. However, it was evident from the latest policy statement on the WhatsApp website and the media reports that the said choice as was available under the previous policy is not available now.

“…consent to sharing and integration of user data with other Facebook Companies for a range of purposes including marketing and advertising, has been made a precondition for availing WhatsApp service.”

Moving ahead, Bench noted that the data collected by WhatsApp would be shared with Facebook Companies for various usages envisaged in the policy. The Commission also took note of the submission of WhatsApp that it would continue to honour the ‘opt-out’ option exercised by users during the 2016 Update; however, the 2021 Update do not create any carveout for such users who opted for not sharing their information with Facebook.

On considering the overarching terms and conditions of the new policy, the Commission prima facie opined that the ‘take-it-or-leave-it nature of privacy policy and terms of service of WhatsApp and the information sharing stipulations mentioned therein merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp.

The conduct of WhatsApp/ Facebook under consideration merits detailed scrutiny.

Bench opined that the users are entitled to be informed about the extent, scope and precise purpose of sharing of such data by WhatsApp with other Facebook Companies.

“… opacity, vagueness, open-endedness and incomplete disclosures hide the actual data cost that a user incurs for availing WhatsApp services. “

Commission also observed that it is also not clear from the policy whether the historical data of users would also be shared with Facebook Companies and whether data would be shared in respect of those WhatsApp users also who are not present on other apps of Facebook i.e., Facebook, Instagram, etc.

There appeared to be no justifiable reason as to why users should not have any control or say over such cross-product processing of their data by way of voluntary consent, and not as a precondition for availing WhatsApp’s services.

No Voluntary Agreement

Users are required to accept the unilaterally dictated ‘take-it-or-leave-it’ terms by a dominant messaging platform in their entirety, including the data sharing provisions therein, if they wish to avail their service. Such “consent” cannot signify voluntary agreement to all the specific processing or use of personalised data, as provided in the present policy.

Unfair

On a careful and thoughtful consideration of the matter, the conduct of WhatsApp in sharing of users’ personalised data with other Facebook Companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users.

Data Sharing with Facebook

The impugned conduct of data-sharing by WhatsApp with Facebook apparently amounts to degradation of non-price parameters of competition

The impugned data-sharing provision may have exclusionary effects also in the display advertising market which has the potential to undermine the competitive process and creates further barriers to market entry besides leveraging, in violation of the provisions of Section 4(2)(c) and (e) of the Act.

While stating that a thorough and detailed investigation is required in the matter, and DG to complete the same within a period of 60 days, held that WhatsApp has prima facie contravened the provisions of Section 4 of the Act through its exploitative and exclusionary conduct, as detailed in this order, in the garb of policy update.[Updated Terms of Service and Privacy Policy for WhatsApp Users, In Re., 2021 SCC OnLine CCI 19, decided on 24-03-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) while addressing the complaint in regard to unfair business by WhatsApp, dismissed the same on finding no competition concern.

Informant has filed the present information under Section 19(1)(a) of the Competition Act, against Whatsapp and Facebook alleging a contravention of provisions of Sections 4 of the Act and both Facebook and Whatsapp are collectively known as “OPs”.

Users of WhatsApp automatically get the payment app owned by WhatsApp i.e. ‘WhatsApp Pay’ installed on their smartphones. This, as per the Informant leads to the contravention of Section 4(2)(a)(i) of the Act as automatic installation of WhatsApp Pay on existing WhatsApp Messenger user’s device amounts to the imposition of an unfair condition on the users/consumers.

COERCION

A user who does not wish to install the Payments App but only the Messenger App does not have the option to do so.

Contravention: Section 4(2)(e)

Automatic installation also amounts to a contravention of Section 4(2)(e) of the Act as the dominance of WhatsApp in the Internet-based instant messaging App market favours and protects it in the UPI enabled Digital Payments Applications Market.

Informant further alleges that the acquisition of WhatsApp, Instagram and Oculus by Facebook causes an adverse effect on the competition as these companies to have huge data sets of users that they can use for their commercial advantage.

Decision and Analysis

Coram observes that the preamble to the Act unequivocally voices the ethos with which the Act was enacted, keeping in view the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.

The mere fact that a case has been filed by an aggrieved party under the Competition Act, does not take away its character of being a case in rem involving a larger question of fair and competitive markets.

Further, it was observed that the Informant need to necessarily be an aggrieved party to file a case before the Commission.

Forum Shopping

Informant has indulged in forum shopping being closely associated with a petitioner who has approached the Supreme Court against WhatsApp and Facebook and this apparent non-disclosure reveals the mala fide intent and unclean hands with which the Informant has approached the Commission.

The Commission observes that WhatsApp and Facebook are third-party apps broadly providing internet-based consumer communications services. Consumer communications services can be sub-segmented based on different parameters.

Commission agrees with the Informant that the second relevant market for assessing the allegations of the Informant would be ‘market for UPI enabled Digital Payments Apps in India’.

At the outset, the Commission observes that Facebook and WhatsApp are group entities and though they may operate in separate relevant markets, their strengths can be attributed to each-others’ positioning in the respective markets in which they operate.

Commission added that in the absence of concrete data/information available in the Indian context other than the subjective information on the popularity of WhatsApp, the Commission is of the view that these trends and results can be used as a proxy, the said trends point towards Whatsapp’s dominance.

Barriers to Entry

The barriers to entry, may arise indirectly as a result of the networks effects enjoyed by the dominant player in the market, i.e. WhatsApp, in the present case. Since network effects lead to increased switching costs, new players may be disincentivized from entering the market.

Hence, Commission prima facie finds WhatsApp to be dominant in the first relevant market — market for OTT messaging apps through smartphones in India.

As regards Section 4(2)(a)(i), the Commission does not find much merit in the allegation of the Informant as mere existence of an App on the smartphone does not necessarily convert into transaction/usage.

Incorporating the payment option in the messaging app does not seem to influence a consumer’s choice when it comes to exercising their preference in terms of app usage, particularly since there seems to be a strong likelihood of a status quo bias operating in favour of the incumbents, at present.

With regard to the allegation under Section 4(2)(d) of the Act, the Commission observes that though the Informant has used the word ‘bundling’, the nature of such allegation is more akin to ‘tying’ as understood in the antitrust context generally.

While ‘tying’ refers to a practice whereby the seller of a product or service requires the buyers to also purchase another separate product or service, which essentially is the allegation of the Informant.

Installation of the WhatsApp messenger does not appear to explicitly mandate/coerce the user to use WhatsApp Pay exclusively or to influence the consumer choice implicitly in any other manner, at present.

UPI Market

UPI market is quite established with renowned players competing vigorously. Given the fact that WhatsApp ecosystem does not involve paid services as such for normal users, it seems unlikely that the consumer traffic will be diverted by WhatsApp using its strength in the messenger market. 

Facebook and WhatsApp undeniably deal with customer sensitive data which is amenable to misuse and may raise potential antitrust concerns among other data protection issues.

In the present case, the Informant has only alleged that WhatsApp/Facebook have access to data which they are using for doing targeted advertising, hence there is no concrete allegation.

Informant has also claimed that WhatsApp is in serious non-compliance with critical and mandatory procedural norms.

In view of the above allegation, Commission, do not seem to raise any competition concern and as such may not need any further scrutiny by it.

Therefore, based on the aforesaid analysis, Commission does not find alleged contravention of the provisions of Section 4 of the Act against WhatsApp or Facebook being made out. [Harshita Chawla v. WhatsApp,  2020 SCC OnLine CCI 32, decided on 18-08-2020]

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

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

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

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

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

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)

Hot Off The PressNews

Instances of lynching of innocent people have been noticed recently because of large number of irresponsible and explosive messages filled with rumours and provocation are being circulated on WhatsApp. The unfortunate killing in many states such as Assam, Maharashtra, Karnataka, Tripura and West Bengal are deeply painful and regrettable. While the law and order machinery is taking steps to apprehend the culprits, the abuse of platform like WhatsApp for repeated circulation of such provocative content are equally a matter of deep concern. The Ministry of Electronics and Information Technology has taken serious note of these irresponsible messages and their circulation in such platforms. Deep disapproval of such developments has been conveyed to the senior management of the WhatsApp and they have been advised that necessary remedial measures should be taken to prevent the proliferation of these fake and at times motivated/sensational messages. The Government has also directed that spread of such messages should be immediately contained through the application of appropriate technology. It has also been pointed out that such a platform cannot evade accountability and responsibility especially when good technological inventions are abused by some miscreants who resort to provocative messages which lead to the spread of violence. The Government has also conveyed in no uncertain terms that WhatsApp must take immediate action to end this menace and ensure that their platform is not used for such malafide activities.

Ministry of Electronics & IT

Case BriefsHigh Courts

Bombay High Court: The Court accepted service of notice through WhatsApp messenger after finding that the notice served was not only delivered, but the attachment was opened as well.

The claimants had filed the execution application against the respondent who was evading all their calls and efforts by legal representatives to reach out to him. He has been evading service of notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908. After tracing his number, a notice was sent to him informing him about the next date of hearing. Notice was served by an authorised officer of the claimant by sending a PDF and message to his mobile number as a WhatsApp message.

The Bench of G.S. Patel, J. accepted this for the purposes of service of Notice under Order XXI Rule 22 as the icon indicators clearly showed that not only was the message and its attachment delivered to the respondent’s number but that both were opened as well. [SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav,2018 SCC OnLine Bom 1262, order dated 11-06-2018]

Case BriefsSupreme Court

Supreme Court: In the light of the data privacy concerns raised before the Court in the matter relating to Whatsapp data sharing with it’s parent company Facebook, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, Amitava Roy, AM Khanwilkar and MM Shantanagoudar, JJ asked Senior Advocates Kapil Sibal and Arvind Datar, appearing for Whatsapp and Facebook, to file affidavits with regard to the assertions made by the petitioners within 4 weeks.

Additional Solicitor General Tushar Mehta brought to the Court’s notice that a committee headed by Former Supreme Court judge, Justice B N Srikrishna, was being formed to deliberate on a data protection framework for India keeping in mind the need to ensure growth of the digital economy while keeping personal data of citizens secure and protected. He further submitted there was a possibility that the law shall be passed regulating the data protection once the committee submits it’s report. Arvind Datar also submitted that the 9-judge bench, in Justice KS Puttaswamy v. Union of India, 2017 SCC OnLine SC 996, had expressed the view that there should be a law with regard to data protection.

Refusing to pass any interim order restraining the respondent from sharing the data with the third party, the Court said that it will consider passing interim order after the affidavits are filed and if the assertions made in the affidavit would not require any kind of intervention by this Court, this Court may not pass any interim order. The matter will next be taken up on 20.11.2017. [Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 1051, order dated 06.09.2017]

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Supreme Court: While the issue relating to ‘right to privacy’ is under consideration before a 9-judge bench, the Centre today told a 5-judge bench of Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ  in the matter relating to Whatsapp data sharing with it’s parent company Facebook, that the data of users is integral to the right to life and personal liberty guaranteed under the Constitution and it would come out with regulations to protect it.

The submission of the Central Government is important in the light of the ongoing Aadhaar proceedings that prompted the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ to refer the ‘right to privacy’ matter to a 9-judge bench. The petitioners have vehemently argued before the 9-judge bench that ‘right to privacy’ should be declared as a fundamental right under Part III of the Constitution. The Union of India will be making it’s submissions in the matter on Tuesday. ‘Right to privacy’ has not been specifically recognised in the Constitution as a fundamental right and that is why the Court has interpreted the said right differently in different case.

Source: HT

Case BriefsHigh Courts

Bombay High Court: A Bench comprising of G.S. Patel, J , has held that the Indian Judiciary system is flexible enough to consider a notice issued through ‘Whatsapp’ or through email admissible in the court of law. It is not necessary for the plaintiff to go through extreme measures like that of a bailiff or through the ‘beat of a drum’ for the notice to be considered as properly served. The defendants were duly notified in the eyes of the court.

The facts in brief are the plaintiff obtained the original rights of a Korean movie for a Hindi remake but soon found the Kannada remake of the film which was made without obtaining the rights of the movie. The plaintiff in this case sent a notice through ‘Whatsapp’ to the defendant. The defendant took the stand that he hadn’t received the notice but the receipt on the delivery of the message was shown. The Court held this method of giving noticeable as valid and also granted temporary and interim injunction against the defendant or any person related to the defendant or working with/ for the defendant by restraining them from making the film available available for showing to the public in any manner or form. [Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production, 2017 SCC OnLine Bom 1433, decided on 27-03-2017]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Bench of Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ listed the matter relating to Whatsapp data sharing with it’s parent company Facebook on 27.04.2017.

Harish Salve, appearing for the petitioners had argued that the policy that is formulated by WhatsApp is unconscionable and is unacceptable and also suffers from constitutional vulnerability since it maladroitedly affects the freedom which is a cherished right of an individual under the Constitution. Mukul Rohatgi, the Attorney General for India has submitted that there is going to be a regulatory regime to save the data base to guide the concept of net-neutrality.

On the other hand, Kapil Sibal, appearing for Whatsapp, argued that WhatsApp does not share data protection of voice and messages, so no part of the content which is exchanged between two individuals is ever revealed to third party and that their action is compliant with Section 79 of the Information Technology Act, 2000.

It was argued by Kapil Sibal that the matter could not have been referred to the Constitution Bench without framing the questions that needed to be referred. Harish Salve, resisted the argument by stating that the foundation that the direction for listing the matter before a five-Judge Bench need not be treated as a reference as postulated under Article 145 of the Constitution of India. He said that the Chief Justice of India is the master of the roster and he has the authority on the administrative side to place the matter before a five-Judge Bench regard being had to the gravity, significance and importance of the matter. The Court, however, said that it will look into this preliminary objection at the time of delivery of the final verdict. [Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 434, order dated 18.04.2017]