Naavi.org

We recently had an occasion where the Delhi High Court made a reference to “Right to Forget” in respect of an accused who had been acquitted.

Copy of the judgement is available here.

The facts of the case was that the petitioner who is presently residing in USA, visited India in 2009 and while departing back to USA was found to posses Narcotics in the checked in Bags.

The trial examined whether the quantity of the substances required was small or big, whether it was recovered from personal possession or in the baggage, whether the chain of custody of the material after recovery was defective or not and finally acquitted the accused. (Refer earlier judgement here)

The Court first acquitted the charge of possession of 5600 gms of Morphine under Section 50 of NDPS Act under the contention ” In a case of recovery of narcotic drug it is the paramount duty of the prosecution to prove beyond reasonable doubt that the case property allegedly recovered from the accused was kept in safe custody and no tampering was done therewith”. Then in respect of a smaller quantity of 81.1 gms on which tampering allegation could not be sustained, it acquitted the accused stating that the friend of the accused who was supposed to have handed over the subject bags was not examined by the IO, stating  ” In view of the deficiencies in the investigation carried out, I do not find it fit to convict the Respondent even for the possession of 81.1 grams of morphine”

Thus the grounds of acquittal were technical and the fact that more than 5600 gms of morphine was recovered from the checked in baggage due to some body’s action remained unanswered.

However one trial court and the appeal court found that the case was fit for acquittal. This happened in 2013.

Now in 2021, the petitioner who was the earlier accused, tried  and acquitted, prayed for removal of the judgement from the platforms of Google, Indian Kanoon and vLex.in

The Court noted that “The question as to whether a Court order can be removed from online platforms is an issue which requires examination of both the Right to Privacy of the Petitioner on the one hand, and the Right to Information of the public and maintenance of transparency in judicial records on the other hand. The said legal issues would have to be adjudicated by this Court. “

Then the judgement referred to the Puttaswamy judgement and the interim order in which it had  said

” recognising the Plaintiff’s Right to privacy, of which the `Right to be forgotten’ and the
`Right to be left alone’ are inherent aspects, it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, or any extracts/ or excerpts thereof, as also modified versions thereof, on any print
or digital/electronic platform shall stand restrained during the pendency of the present suit. “

It also referred to the Orissa High Court order in which the Right to be forgotten had been discussed in the context of a lady who had been victimized by a person who had posted sexually explicit content on the social media.

This judgement acknowledged that there was no statutory provision in India that provides for the Right to be forgotten and made references to GDPR article 17 and recitals 65 and 66. It also referred to a case in England in the Wales High Court where a similar issue of convicted person’s name appearing in Google searches and concluded that Right to Privacy is in sych with the right to privacy which was part of the Puttaswamy judgement. It also stated

“the Ministry of Law and Justice, on recommendations of Justice B.N. Srikrishna Committee, has included the Right to be forgotten which refers to the ability of an individual to limit, delink, delete, or correct the disclosure of the personal information on the internet that is misleading, embarrassing, or irrelevant etc. as a statutory right in Personal Data Protection Bill, 2019”

The order continued to say “The Information Technology (Reasonable Security Practices
and Procedures and Sensitive Personal Data or Information) Rules, 2011, India’s first legal framework recognized the need to protect the privacy of personal data, but it failed to capture the issue of the Right to be forgotten….. This principle is embodied in S.5 of the yet to-be-implemented Personal Data Protection Bill, 2019”.

It further went on to refer to PDPB 2018 to sate

“Section 27 of the draft Personal Data Protection Bill, 2018 contains the right to be forgotten. Under Section 27, a data principal (an individual) has the right to prevent continuing disclosure of personal data by a data fiduciary.”

Further it stated

“Section 10 of the Bill provides that a data fiduciary shall retain personal data only as long as may be reasonably necessary to satisfy the purpose for which it is processed. Further, it imposes an obligation on every data fiduciary to undertake periodic reviews in order to determine whether it is necessary to retain the personal data in its possession. If it is not necessary for personal data to be retained by a data fiduciary, then such personal data must be deleted in a manner as may be specified. “

The above views were expressed in the judgement of Justice S.K. Panigrahi and was dated 23rd November 2020

Our Conclusions and Views

Having gone through all the above judgements at the High Court level, we note that the Indian Judiciary has already taken cognizance of the Personal Data Protection Bill 2019 as if it is an established principle of jurisprudence. Hence those who are arguing that the Act is still not passed and therefore the provisions are not required to be complied with are wrong.

Naavi has repeatedly held that PDPB2018/2019 is a replacement of Section 43A of ITA 2000 and represents the “Due Diligence” required to be followed by organizations. It is with this belief that Cyber Law College and FDPPI started trainings based on the PDPB 2019 and started providing qualification certificates and also established a complete system of Certifiable audit for Compliance in the form of PDPSI (Personal Data Protection Standard of India).

Some of the professionals who are used to such concepts come only from the west, were uncomfortable that some organization in India was providing certifications based on indigenous systems of Certifications. Vested interests tried to discourage the adoption by corporate circles, though FDPPI came through all this and established itself as the premier organization in India in the field of Data Protection.

These judgements vindicate the approach of Naavi and FDPPI in trying to create awareness of PDPB 2019 before it is passed as an Act.

In the light of the controversies surrounding WhatsApp and Twitter, some media persons are questioning why the Government is not pushing the passage of the PDPB 2019 and instead going against Twitter and WhatsApp. The honourable minister of IT Mr Ravi Shankar Prasad in an interview yesterday  assured that PDPB2019 will be pushed for debate during the next Parliamentary session.

While the above leads us to conclude that PDPB 2019 is considered as the “Due Diligence under ITA 2000”, we shall debate further about the Right to forget itself … in the continuation.

The interview of Honourable Minister of IT Mr Ravi Shankar Prasad with Navika Kumar of Times Now live streamed  on 28th May 2021.

See statement at 39.56 minute where Mr Prasad refers to the PDPB2019.

( You can directly go to the part on PDPB 2019 here)

Naavi

….Continued

Also Refer:

Livelaw.in

Three Judgements to follow

Orissa High Court Judgement

Delhi High Court  Trial 29th January 2013

Delhi High Court 12th April 2021

(Also refer the previous article: WhatsApp petition deserves to be rejected at the admission stage itself)

The case filed by WhatsApp in the Delhi High Court challenging the validity of the Intermediary guidelines issued on February 25, 2021, indicates that the company  wants to project itself as the “Privacy Champion” and a crusader to protect the Right to Privacy of Indian Citizens just like Twitter says it is the “Free Speech Champion”.

MeitY has put Twitter in its place through its press statement following the Twitter’s lofty statement.

Now it is time to address the WhatsApp which has chosen to confront the Indian Government through the Delhi High Court.

The statements made in the main prayer which the media is likely to highlight and may occupy the people’s mind are :

1) Impugned Rule violates the fundamental rights of the hundreds of millions of WhatsApp users in India and Petitioner, and is ultra vires its parent statute, manifestly arbitrary, and illegal. The balance of convenience is also in favour of Petitioner and against Respondent.

2) Will cause irreparable harm to the fundamental rights of Petitioner and its users and Petitioner’s reputation.

3) No demonstrable harm will be caused to anyone if the operation of Impugned Rule 4(2) is stayed pending adjudication of this Petition.

4) Impugned Rule 4(2) should be stayed during the pendency of the accompanying Petition as the Impugned Rule is without the authority of law, imposes onerous and
constitutionally invalid obligations upon Petitioner, and violates the fundamental rights of hundreds of millions of WhatsApp users throughout the country.

5) Request -Ex-parte ad-interim stay (i) the operation of Impugned Rule 4(2) as to Petitioner and its employees during the pendency of the accompanying Petition, and (ii) the imposition of criminal liability on Petitioner and its employees for non-compliance with Impugned Rule 4(2) during the pendency of the accompanying Petition;

Let us not be diverted by the above issues which the petitioner wants to be debated with the real issues that are now before the Court, such as the following.

1. Should  the Court grant an  “Ex-Parte Stay” as requested?

It must be noted that this rule was notified 3 months back and the petitioner has approached only at the expiry of the time provided for compliance and is now alleging that they would be subject to a harm if the rule is not stayed.

The argument that the balance of convenience is in favour of the petitioner is therefore created out of the failure of the petitioner to approach the Court earlier.

Also, the petitioner’s contention that “No Demonstrable harm would be caused to anyone” is incorrect. Every minute this rule is not implemented, the law enforcement will have difficulty in tracing the origin of fake messages that may disturb peace and harmony in the society. Public will not have a grievance officer to check on their grievances if any. Messages that harm individuals and the community will continue to get transmitted in the platform, some of them causing harassment of women or children leading even to death and suicide.

There are already the “Three Tick misinformation” which is circulating in WhatsApp. There are innumerable Covid related mis-information causing panic and even death. Personal defamatory messages where videos of rape or morphed photographs are common in groups.

In all such cases there are hundreds of victims across India who want the perpetrator of the crime to be traced and punished. Hence there are thousands of individuals who would be harmed by any delay in the implementation of this rule.

The only harm that would be caused by the stay not being granted, to the petitioner, by this rule is that they will not be able to claim the defense of “Intermediary protection”. This will arise only in an instance where some legal proceedings are launched in which a WhatsApp message is an evidence.

This does not mean that WhatsApp will be held guilty and its officials would be put in jail. It only means that the Courts can include WhatsApp as a respondent and consider “Contributory Negligence” and “Vicarious liability” on WhatsApp and its executives (under Section 85). Such liabilities will fructify only when such a case comes up and WhatsApp is named as an entity that contributed to the commission of the crime.

Hence the Delhi High Court has to reject this argument of “Balance of Convenience” and not grant any interim stay.

2.  Violation of Fundamental Right of hundreds of millions of WhatsApp users 

WhatsApp has already violated the fundamental rights of the users in India by denying them any dispute resolution rights in the country since their terms of use indicate that

“for any claim or cause of action that WhatsApp files against you, you and WhatsApp agree that any such claim or cause of action (each, a “Dispute,” and together, “Disputes”) will be resolved exclusively in the United States District Court for the Northern District of California or a state court located in San Mateo County in California, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or cause of action, and the laws of the State of California will govern any such claim or cause of action without regard to conflict of law provisions. “

This is in addition to the fact that under their mandatory privacy policy, personal data of the users would be shared with Face Book which can be used for profiling. Such profiling is also feasible on the political and religious views and can be used for any activity which can harm the security of the nation, its sovereignty and integrity.

While protection of Privacy of Indian citizens is important, between the petitioner and the respondent, it is the respondent who has the Constitutional responsibility and means. WhatsApp has no constitutional responsibility in India and has no means to protect the privacy of the hundreds of millions of Indians.

Its statements are a  tactic to divert the debate from its inability or refusal to abide by the laws of India.

The Court has to trust the Government of India to act responsibly and cannot accept the contention of the petitioner  that while WhatsApp is interested in protecting the fundamental rights of Indian citizens the Government of India is not.

Any forbearance shown on the part of the Court by admitting the petition would embolden every business entity big or small to challenge every law, rule or notification made by the Government.

3. Is the Government empowered to Govern the country on its own? or should it run Governance according to the diktats of the private sector companies ?

The real issue in the petition is whether the Government of India can make laws and subordinate regulations without the interference of the vested interests on the speculation that if the law is passed, there will be a harm to their “Fundamental Rights”.

If the Government makes a bad law that hurts any person, the person who is aggrieved can show his damage and approach the Government for correction of the law, failing which the Court.

If for every day to day regulation, the Court has to stand as an arbiter, then the Judiciary has to run the executive and the Parliament can be dissolved.

In recent times, misplaced enthusiasm of some advocates have often made the Court the executive office for drafting the operational guidelines for many aspects such as how much of oxygen has to be supplied to which hospital or which state at what price etc.

The practice of judiciary intervening in the day to day operations of the executive when no harm has been caused, merely on the speculation of a harm is a misuse of the facility of Writs which have to be reserved for the rarest of rare circumstances.

If the petition is not dismissed at the current stage, there will be a vindication that the executive does not have any powers to pass rules even when the rule categorically mentions that it is under the reasonable exemptions provided under the constitution or under earlier Supreme Court decisions.

This will induce a policy paralysis in the country where  the Government has to put every notification for approval in the Court. Probably a special bench would be required to attend to the “References”.

Hence the Court should dismiss the petition right now and advise the petitioner to approach if there is any damage that occurs to him on account of the proposed regulation at which point of time the issue of whether the subordinate law is ultra vires the parent act or whether the parent act is ultra vires the constitution may be considered.

We hope the Court will come to the right conclusion and nip this revolt in the bud.

We hope that the above points are put across forcefully by the Government advocates at the admission stage, strongly  opposing the admission.

If the case is admitted, as a secondary option, the stay has to be opposed vigorously and if granted has to be challenged with an appeal.

The general tendency to accept admission out of reverence to Judiciary and then contest  the trial should be avoided.

Afterall, Courts are used to hearing arguments on “Sir, You donot have jurisdiction” or “Sir you have a conflict and should recuse yourself” and take them sportingly.

Hence it is OK to tell the Court that the admission of the case itself will send a wrong signal to the public that the Government has done something wrong and stay if granted will convey to the public that the Government is not empowered to pass even a notification on a law which has been in existence for over a decade without being challenged.

The Court should not appear to trust the speculative contentions of a petitioner more than the assurances of the elected Government.

If done, more than it being appreciated  as the independence of the judiciary, it will be a serious blow to the credibility of our democracy.

I hope that the Government advocates muster necessary courage to put across some of the above points before the Court and oppose the admission as vigorously as some of the private counsels do.

Naavi

Twitter intensified its assault in Indian Sovereignty by posting a piece of advice for India.  It joined hands with WhatsApp which claimed to protect the Indian constitution by filing a case in Delhi High Court to protect the Privacy of Indian Citizen to claim the mantle of “Freedom of Speech”.

Unfortunately Indians understand that Jack Dorsey’s concept of Freedom of Expression is a narrative for regime change in India.

Both Twitter and WhatsApp seem to consider that they are together powerful enough to bring down the Modi Government which the Indian opposition have not been able to do.

In response o the above Tweet, the Meity came up with its own rebuttal with a press release as follows and released it first on Koo.

Copy of the Meity Press release is here

The rebuttal is strong and highlights that Twitter is trying to dictate its terms to the world’s largest democracy and trying to undermine the Indian legal system.

It reiterates that Twitter needs to stop beating around the bush and comply with the laws of the land since law making and policy is the sole prerogative of the sovereign while Twitter is just a social media platform.

It goes on to “Condemn” the Twitter statement as “Unfortunate”, “Baseless”, “False” and an attempt to defame India.

Delhi Police has also released its response to Twitter stating

“We have come across press reports that quote Twitter Inc. statements pertaining to the ongoing inquiry by us. Prima facie, these statements are not only mendacious, but designed to impede a lawful inquiry by a private enterprise. Twitter, being a public platform, must lead in demonstrating transparency in its functioning and should bring clarity into subject matters of public domain. Since the matter has been put in public domain, it’s important to set the record straight on tendentious statement made.”

Police have also accused that “the social media giant is purporting to be an investigating, as well as adjudicating judicial authority but the Police is the only legal entity to investigate, as duly laid down in the law, while courts are the only legal entity that can adjudicate.”

Let us watch how the war launched by Twitter and WhatsApp against India proceeds. Just as the Indian army showed time and again to Pakistan and China that India of today is not the India of yester years, we would like the Indian Government to show both Twitter and WhatsApp that India can do well with  Koo and Arattai and  we donot need Twitter and WhatsApp.

We hope Twitter gets the message and apologizes for its arrogant narrative. But we urge Indians to start migrating out of Twitter and make it irrelevant.

Naavi

Yesterday there were many TV debates in which the issue WhatsApp filing a petition in Delhi High Court was discussed. As usual the set of spokespersons of anti India political parties went on spreading false information that the Government is trying to muzzle free speech and infringe Privacy while WhatsApp is trying to protect the Indian constitution.

These developments have made it necessary for the Government to come up with three notifications trying to clear the misconceptions.

Press Release from MeitY

In a press release dated 26th May 2021, the Government has assured the public that

“The Government Respects the Right of 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”

It is because of the malicious nature of our pollical parties that the Government has to state what is obvious and is already contained in the Intermediary Guideline because the opponents of the Government speak telling lies without any inhibitions.  Many of the TV anchors are themselves trying to mislead the public either because of ignorance or deliberately.

The above press statement also refers to an International statement released by the US department of justice notification which called upon the technology companies to work with the Governments to take steps such as

” Enable law enforcement access to content in a readable and usable format where an authorisation is lawfully issued, is necessary and proportionate, and is subject to strong safeguards and oversight; and Engage in consultation with governments and other stakeholders to facilitate legal access in a way that is substantive and genuinely influences design decisions”

It also stated that technology companies should

” Embed the safety of the public in system designs, thereby enabling companies to act against illegal content and activity effectively with no reduction to safety, and facilitating the investigation and prosecution of offences and safeguarding the vulnerable;”

This statement has also been signed by UK, Australia, New Zealand, India and Japan.

Obviously, WhatsApp has not moved any International Court to protect the privacy of international citizens. It has moved Indian Court because it is assured of  the support of many  Indian politicians and media.

The press note has also quoted the Brazillian Government notification that it is looking for WhatsApp to provide suspect’s IP addresses, customer information, geo-location data and physical messages.

I hope that all of us who accept the Privacy policies of companies which state “We respect your Privacy” and go onto  infringe them, will also accept the intention of the Government as expressed here in the press note.

Note to All Significant Social Media Intermediaries (SSMI)

MeitY also issued a circular addressed to all the SSMI s to provide information about the Chief Compliance officer, Nodal Contact person and the Resident Grievance officer, physical contact address etc., and the current compliance.

Press Note from MIB

The Ministry of  I& B also released a press note regarding furnishing of information by digital media publishers under Rule 18 of the Intermediary rules.

This rule states as follows:

FURNISHING OF INFORMATION

18. Furnishing of information.— (1) A publisher of news and current affairs content and a publisher of online curated content operating in the territory of India, shall inform the Ministry about the details of its entity by furnishing information along with such documents as may be specified, for the purpose of enabling communication and coordination.

(2) The information referred to in sub-rule (1) shall be furnished within a period of thirty days of the publication of these rules, and where such publisher begins operation in the territory of India or comes into existence after commencement of these rules, within thirty days from the date of start of its operations in the territory of India or its coming into existence, as the case may be.

(3) The publisher of news and current affairs content and the publisher of online curated content shall publish periodic compliance report every month mentioning the details of grievances received and action taken thereon.

(4) The Ministry may call for such additional information from the publisher as it may consider necessary for the implementation of this Rule.

The Press release clarifies that there is no requirement for prior registration of digital media publishers with the ministry.

However information in one of the following formats needs to be  furnished within the next 15 days.

a) Appendix I meant for digital news publishers which also publish/telecast news on traditional media such as TV and News paper

b) Appendix II for digital news publishers

c) Appendix III for publishers of online curated content (OTT platforms).

“News and Current Affairs Content” applicable to digital news publishers ‘ includes newly received or noteworthy content, including analysis, especially about recent events primarily of socio-political, economic or cultural nature, made available over the internet or computer networks, and any digital media shall be news and current affairs content where the context, substance, purpose, import and meaning of such information is in the nature of news and current affairs content.

‘publisher of news and current affairs content’ means an online paper, news portal, news aggregator, news agency and such other entity called by whatever name, which is functionally similar to publishers of news and current affairs content but shall not include newspapers, replica e-papers of the newspaper and any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity;

‘publisher of online curated content’ means a publisher who, performing a significant role in determining the online curated content being made available, makes available to users a computer resource that enables such users to access online curated content over the internet or computer networks, and such other entity called by whatever name, which is functionally similar to publishers of online curated content but does not include any individual or user who is not transmitting online curated content in the course of systematic business, professional or commercial activity;

Essentially the information sought consists of the contact details and Grievance redressal mechanism.

Blogs such as Naavi.org are not considered to be “Digital News Publishers” since the prime objective of such sites is to express the views of the blog owner. There is no collection of news from reporters nor focus only on “News”.

Twitter and WhatsApp have taken a stand to oppose the regulations while OTT platforms are mostly trying to comply with the law.

In view of the clarifications mentioned in the press note of MeitY, the Delhi High Court may consider the WhatsApp petition is an unwarranted intrusion to the functioning of the Government.

Even if the Court decides to admit the petition to go through some relevant legal issues, there is no need for stay since WhatsApp had 3 months time to put its systems in place and chose not to do so.

Naavi

WhatsApp has filed a petition in the Delhi High Court challenging the Intermediary guidelines of February 25, 2021 in a 224 page document, a copy of which is presented here.

The petition was expected and Naavi.org had indicated the possibility even on February 25th and suggested that the Government should make its moves before a stay is granted. 

However the Government waited for the whole 3 months without any action and now WhatsApp has taken advantage of the entire three months which was available to it for taking action and now filed the petition. It could be a strategy to act only when required and could have been a strategy to attack the Indian Government from a second flank while it is already busy in its fight against Twitter in another flank.

The Prayer in the petition is 

a) To restrain the Government of India from taking any coercive steps under Rule no 4(2) of the order of February 25th.

b) Grant of ex-parte ad-interim stay on the operation of the impugned rule

The rule 4(2) states as follows:

“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.”

Petition allegations that are not sustainable

Now the petition of the WhatsApp makes the following allegations.

1. Introducing a treaceability requirement for end-to-end encrypted services will lead to breaking of such encryption and thus compromising the privacy of individuals making use of such services for their private communications”. (Based on the SFLC note submitted to MIT)
2. “Where speakers in the offline context were assured a limited degree of secrecy and obscurity in their communications, the proposed measure [to enable the identification of the first originator of information] renders encrypted and therefore secret communication impossible.” (Based on Centre for Communication Governance at National Law University Delhi note submitted to MIT).
3. To be clear, traceability is incompatible with end-to-end encryption. Encryption as a service is used by journalists and whistleblowers to legitimately protect their privacy and in that is an enabler of the right to privacy and the freedom of expression. Apart from protecting privacy, encryption also makes communications more secure and helps ensure integrity of information.” (unidentified note no MIT/79/087 submitted to MIT)
4.  This [tracing] obligation also undermines the use of encryption technology, which ensures that content is not accessible to the intermediary or third parties.” (COAI submission to MIT

It may be noted that all the above references are related to the public comments submitted in 2019 to the then published draft notification from which selective comments have been quoted. The petition has deliberately omitted submissions such as that of FDPPI, (MIT 79/016) a copy of which is available here . The entire set of comments are available here .

The endorsements given above are from people outside of WhatsApp and they are not privy to the technology used by WhatsApp. 

Since WhatsApp receives the message from some originating device on its server, the server does note the device identity of the incoming message. Then it forwards it to the next device. In the meantime it counts if the same message is forwarded 5 times. If it can do so, then it means that WhatsApp knows what is the message being forwarded and from whom. 

It is clear that the recording of the origination and counting the number of forwards  does not undermine the content encryption and hence the views expressed above are not sustainable. WhatsApp is aware that these views are incorrect but is quoting it in its petition to mislead the Court. 

Reference to Puttaswamy Judgement

The petition makes reference to the Puttaswamy judgement and debates the Legality, Necessity and Proportionality aspects. 

WhatsApp says that there is no statute requiring that the intermediaries need to identify the origin of the message and it cannot be introduced through subordinate legislation.

WhatsApp perhaps expects that every procedural aspect of compliance should be part of the statute. In such a case ITA 2000 would be bigger than the Indian Income Tax act or Companies Act. It is one of the objectives of ITA 2000 to prevent offences. Sending false information through any media, written or electronic to induce social unrest or affect national security is an offence under IPC read with ITA 2000 and Indian Evidence act. The procedural guidelines have to come through notifications and the argument of WhatsApp is unacceptable. 

As regards the necessity and proportionality the guideline specifies that it can be used only in certain circumstances which need to be recorded and will be subject to judicial scrutiny on post facto basis.

For identifying the first Indian originator in a chain, WhatsApp can maintain the data of Indian customers in an Indian server so that the import of data can be identified without difficulty. This will also serve the Data Localization requirements.

WhatsApp argues that compelling the platform to change its structure for compliance is not legal. By this kind of argument, we can say GDPR should not ask companies to implement “Privacy by Design” since it would be necessary to change the current architecture. 

WhatsApp also argues that ITA 2000 preamble says that that there is an intention to achieve “Uniformity of the law” and there is no other global law requiring traceability and hence India cannot introduce such a law. The petitioner does not know that this was in reference to the legal recognition to be given to electronic documents and not to say that India will pass only such laws which USA or another Government passes.

It is shameful that the learned counsels who have drafted the petition thinks that India does not have the right to pass a law which is different from laws of other countries. 

The logic presented by WhatsApp is therefore completely untenable and looks childish. The same arguments are repeated again and again to make the document run 224 pages.

The fundamental issue here is whether the Government of India has the right to notify a regulation under an existing Act which was enacted in 2000, amended in 2008. WhatsApp is one of the parties which has a vested interest in diluting the due diligence. 

By refusing to accept the regulation even though the power to demand the identity of the originator is highly restricted as per the reasonable exceptions under Article 19(2), WhatsApp is challenging the sovereign powers of the Government of India. The technical difficulties in compliance are fake claims and even if present cannot be an excuse to comply with the law.

It is unclear why WhatsApp needed 3 months to realize that they will not be able to comply and did not come up with this petition immediately after February 25th. Was it because raising the issue in the Court was an after thought and prompted by Twitter? in which case it will be part of a conspiracy towards the regime change. There is therefore a suspicion that WhatsApp wants to be a supporting platform of efforts to destabilize the Indian Government through distribution of anonymous fake messages through the platform as it has happened on many occasions.

The intention of WhatsApp in approaching the Court on the last day of the 3 month dead line is therefore suspect. 

The petition is speculative since the Company has not sufferred any damage on account of the proposed notification. The Government of India is under no obligation to provide a safe harbor under Section 79 on an unconditional basis. If the company does not want to comply, with the due diligence requirements, it will be free to do so by giving up the protection available under Section 79 which would be available for organizations that would be compliant with the due diligence.

As regards WhatsApp being the champion of Protecting the Privacy of Indian citizens, the track record of WhatsApp is indicative that it collects personal information in the form of profiles, tracks the messaging behaviour and shares it with Face Book for monetization in a deceptive manner. In its recent Privacy policy change it has not provided any grievance redressal option in India and wants to do business in India without accountability.

If any person in India sends a message through WhatsApp which is 

“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:“

the Right to Privacy as a fundamental right is not applicable since the above provision comes under Article 19(2) of the Constitution. 

Hence the argument that the notification infringes the constitution of India is not valid and has to be rejected forthwith.

If in any specific case where the Government asks for the information about the originator of a message appears prima facie unreasonable, disproportionate, WhatsApp is having a right to approach the Court and seek a stay. 

In view of the above the petition does not deserve to be admitted particularly with any interim stay. 

We hope that the Court will take a view of the petition in the context where the international social media giants like Twitter and Face Book/WhatsApp wants to take control of the news narratives in India and manipulate the public opinion for a regime change.

I hope the Government of India brings to the notice of the Court the conspiratorial aspects of this petition.

P.S: Meity has issued a press note and a  notice  to the intermediaries to explain its stand. Ministry of I& B has also issued a press note.

Naavi

Previous Reference Articles:

New Intermediary Guidelines- February 25, 2021

The New Digital Media Regulation and the New Media War: March 2, 2021

Can Twitter be tamed under ITA 2000?..February 12, 2021

Twitter high on Technology Intoxication…February 3, 2021

Quit Twitter..February 4, 2021

Let Indians go for a “Twitter Silence” and move over to “Tooter” or “Koo”

In the last few days there have been two important developments about which we need to discuss.

1. 1. 1. Twitter continues its resistance against the Indian Government in the Toolkit controversy
      2. WhatsApp files a case in the Delhi High Court against the Union of India challenging the IT Rules of February 25, 2021

The two developments appear to be the launching of a “War Against Indian Sovereignty in Cyber Space”. While Twitter appears to be clearly working on a regime change in India, it is not yet clear if  the real intentions of WhatsApp are restricted to commercial implications arising out of the new Intermediary Rules and Digital Media Ethical Code notified by the Government on 25th February 2021.

However together Twitter and WhatsApp (which includes Face Book) appear to have launched a war cry against the sovereign power of the Government of India to make laws for the Cyber Space that affects the citizens and residents of India.

One thing is certain. If the Indian Government backs out of this fight, it would like the Indian army yielding to the Chinese aggression on the borders. They need to stand their ground and possibly take the fight into their grounds.

In both these fights the role of the Indian Courts becomes very important. Like the Indo-Pak dispute going to the UN, the Indian Government vs Twitter/Face Book will also go to the Supreme Court.

While in the border issues, India has taken a stand that this is a bilateral issue between India and Pakistan, we donot know if the Government can convince that the dispute with Twitter and WhatsApp is also a bilateral business issue and the Supreme Court should limit its role appropriately.

In the Rafael case, the Supreme Court took a stand keeping the national interest in mind. Now under the new CJI, Justice N V Ramanan, Supreme Court has to prove if it will function to defend the Indian National interests or will  be considering it as a fight against Modi’s regime.

It is OK for the media to project these disputes as between Modi Government Vs Twitter or WhatsApp and carry Twitter hash tags for debates. But it requires a high level of statesmanship for the CJI to remain neutral.

If  Congress party and their  team of lawyers led by Abhishek Manu Singhvi, Kapil Sibal, P Chidambaram etc., with the assistance of Mr Prashant Bhushan and Dushyant Dave could convert the dispute as between Mr Modi vs Protectors of Indian constitution, then Supreme Court will pave the way for the Outside-Election regime change.

The strategy of the opposition is to use Indian Constitution as the tool to bring about the  change of Government without winning elections, just like the Kashmir Terrorists who fight within the Indian Constitution against the Indian constitution. They will also engineer an internal strife by instigating RSS and other leaders like Mr Nitin Ghadkari to challenge the leadership of Mr Modi.

This is the background under which the Delhi High Court will take up the WhatsApp case. It is in this context that the recent interim order of the Delhi High Court making reference to the “Right to Forget” also becomes relevant. At present it remains a purely academic issue but it could soon be dragged into the political controversy.

The decision of the Delhi High Court has both positive and not so positive aspects of academic interest which requires a separate debate. We shall take up this academic debate separately after the discussions of the War at hand.

For the time being we shall restrict our discussions to the role of the Indian Courts in the current dispute.

….to be continued

Naavi