Naavi.org

(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

On February 25, 2021, the Government of India notified the new rules for the Intermediaries under Section 79. The new intermediary guidelines were discussed in detail in this website . Naavi.org also suggested that a “Digital Media Compliance Guidance Center” would be activated to help the digital media comply with the requirements of the “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021” .

This notification had two parts. The first part was related to the due diligence to be practiced by intermediaries to be able to invoke the safe harbor provisions of Section 79 of ITA 2000. The second part consisted of the ethical guidelines that the digital media were expected to follow as a self regulation.

Non Compliance of the guidelines had the effect of disallowing the safe harbor provisions under Section 79 of ITA 2000 and make any digital publication liable for any offence committed with the use of a message posted in the platform.

A time has come now for the Government to show if the notification was only a paper tiger.

On the one hand, no digital media organization has come up with either a self regulatory guideline as suggested or created a self regulatory body at the industry level. The Meity/I & B ministry also has also not specifically  announced the formation of the Inter departmental committee or an “Authorized officer” for issuing the directions.

The industry has completely ignored the joint press meeting of Mr Ravi Shankar Prasad and Prakash Javdekar as if they are a no body.

Twitter has now gone a step further to declare that the tweets published by some BJP leaders are “Manipulated”. In other words, when there is an FIR registered for a similar charge, Twitter has come to a conclusion that the allegations made in the FIR are true.

It was therefore natural for the Police to summon Twitter and share with it the evidence that Twitter may have to come to a conclusion that the “Tool Kit” referred to by the tweets were “Manipulated news”. This actually is a charge of “Forgery” for which the verified tweeters can be prosecuted. 

When the Police issued the summons to Twitter, it appears that they have re-directed the Police to their US office and washed their hands off the responsibility to explain the process behind the tag “Manipulated” assigned to some of the tweets.

Twitter has also challenged the Government of India and has refused to follow the directions issued by the Government. They have not been in compliance with the February 25 guideline which require that there has to be a “Chief Compliance Officer”, “Grievance redressal officer” and a “Nodal officer ” all of whom have to be located in India. They should be able to redress the grievance within 15 days. These were expected to be done within a period of 3 months from the date of notification, which expires today. (Please refer para 4 in page 5 of the notification available here)

Since we donot see any announcement from Twitter which is classified as a “Significant Data Fiduciary”, Twitter is not in compliance of this guideline. 

Further, by resisting the notification of the Government to remove the “Manipulated” tag, Twitter has declared itself to be out of the safe harbor provision of Section 79 which states that the provisions that “intermediary shall not be liable for any third party information” in respect of any law applies only if 

 -the function of the intermediary is limited to providing access to a communication system over which information made available by third parties  is transmitted or temporarily stored;  and 

-the intermediary upon being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary expeditiously removes or disables access to that material on that resource without vitiating the evidence in any manner.

Twitter is placing its faith in the support of the opposition parties in India and trying to project itself as the “Champion of Freedom of Speech”. It fancies itself as a media that will bring about a regime change in India.

The Government on the other hand is behaving cowardly as if it has no powers under the  law of the land and trying to be sub servient to the corporate entity of Twitter which has proved to be a manipulator of political systems in different countries including USA itself.

In the given context the action of Delhi Police who were investigating the FIR against Mr Sambit Patra summoning Twitter to provide evidence in its hands was absolutely justified.

However, since Twitter is likely to manipulate any evidence which may be lying within the systems in its office in India including the personal laptops of the key officials, it is necessary for the police to seize all the computers used by the key persons in Twitter India responsible for deciding whether the “Toolkit Document” was forensically examined and found to be “Manipulated” and whether there was any other process involved in tagging the tool kit as “manipulated”.

It may be necessary to even temporarily close the Twitter office and bring in forensic investigators to do their investigations. Merely roaming around Twitter office and issuing a summons is not sufficient.

At the same time, since Twitter is not fulfilling the February 25 guidelines, it has no protection as an “Intermediary” and hence if there is any complaint from BJP that Twitter is indulging in a conspiracy to destabilize the political system in India, it has to be investigated under the appropriate sections of IPC. If there is any evidence of tampering of evidence, then they should also be charged under the relevant provisions of IPC. 

In this “Conspiracy”, the earlier tweets of “Greta Thunberg” to fuel the farmer’s unrest should also be investigated.

There is no doubt that by the time you read this article, you may find that our honourable Supreme Court might have been moved and a stay might have been obtained by Twitter for any further enquiry by the Delhi Police. Hence the issue of whether Twitter is behaving like an extra judicial authority more powerful than a Government body will be decided by the Court. Given the TRP value of this case, the Judiciary is likely to be soft on Twitter and the Government of India does not have a reasonable chance of a fair trial.

Hence Government should also think of other measures to discipline Twitter and establish the “Rule of Law” in India.

This requires that all Government agencies including Mr Modi , the PMO and ministries and ministers should immediately delete their accounts and also ask for “Porting of the data” back to them. The Government/Police have every right to ask the registration details of all relevant Twitter accounts which have posted messages in support of the “Manipulated” tag as they could be fake accounts.

If the Indian Data Protection Act was in place, Government could have asked for exercising the “Right to Forget” for all tweets of individuals connected with the Government and imposed a fine upto 4% of global turnover if they had failed to do so.

If the Government of India and its ministers etc take a stand to withdraw from Twitter, even the millions of fake accounts of the trolls of the opposition also have to withdraw since there will be no audience for their trolls.  This should be a significant enough blow to Twitter.

But it does not appear that the Government has the courage to go anywhere beyond issuing a summon. Probably they will be too happy if the Supreme Court obliges Twitter by issuing a stay on the proceedings since there will be an excuse for inaction. 

We the people of India are used to colonial powers calling shots on our lives and therefore are not uncomfortable with Twitter branding supporters of our Government as “Manipulators” and placing faith on the views of opposition members. We will therefore be comfortable to absorb this insult and our Courts would also be too happy to tag themselves “Champions of Freedom of Expression” and let Twitter kind of organizations dictate the law enforcement in India.

The question therefore is “Was the February 25 notification meant to be only a paper tiger? or was the Government serious?”. Let us hope we will get an answer today. 

Naavi

Also refer:

Should we revisit  Safe harbor principle?..rssr.in

Facebook, Twitter to be blocked in India?… Deccan Herald