We congratulate the team at Root64 which in association with the420.in has created a centralized online database of Nodal Officers /Contacts of various intermediaries and service providers.
You can find any Nodal Officer connect through this search engine under the following link.
We congratulate Mr Amit Dubey, the Chief mentor of Root64 foundation.
Naavi
One of the major changes that we notice in the Modi cabinet announced on 7th July 2o21 is that Mr Ashwin Vaishnav, has taken over as the new Minister of IT in place of Mr Ravishankar Prasad. He will be holding the IT ministry along with the heavy weight Railway ministry. Even in the earlier ministry, IT had been clubbed with Law but Law was relatively a lower weight portfolio compared to Railways. Now Mr Kiren Rijiju will be exclusively in charge of Law and Justice.
We may note that Mrs Meenakshi Lekhi who headed the Joint Parliamentary Committee (JPC) on Personal Data Protection Bill 2019 has been appointed the Minister of State in the Ministry of External Affairs; and Minister of State in the Ministry of Culture. Mr Rajeev Chandrashekar who was also in the JPC and a known IT aware person gets Minister of State in the Ministry of Skill Development and Entrepreneurship; and Minister of State in the Ministry of Electronics and Information Technology.
The Ministry of I&B will also have a new face in Mr Anurag Thakur and it is significant that Mr Prakash Javdekar has vacated the ministry.
Our best wishes to all the new ministers.
However, the developments clearly show that Twitter and WhatsApp have won the battle against “Data Sovereignty” for the time being. The removal of both Ravishankar Prasad and Javdekar simultaneously and the allocation of portfolios indicate that the influence of the Twitter-Facebook lobby has ensured that all known faces that were taking a tough stand against the hegemony of the Social media giants have been ousted.
We donot know if the new ministers will be lenient on the principles of Data Sovereignty, Data Protection, Cyber Security etc which were in active discussion in the last few months. We need to wait and see the new policy statements from the incumbent ministers to understand how the scenario unfolds.
India had one global leadership opportunity in the field of IT and it appears that it has not been nurtured. Had a separate ministry been created for IT and Telecom, thrust could have been given for IT in industry with AI, BigData, 3D printing, Robotics, Industry 4.0, Hardware development, Indigenous OS development, Indigenous social media platforms, regulation of Mobile Apps and Gaming etc., which required close attention.
The opportunity has been squarely missed. The IT therefore has an apparent setback.
The silver lining however is that Mr Ashwin is an MTech from IIT Kanpur and an MBA from Wharton University. Though his experience appears to be more in the manufacturing sector, one can expect that he would be able to bring forth his vast management experience into the discharge of his responsibilities as Minister of IT. It may however require a little time for him to adapt to the requirements of the IT ministry. This could put many of the projects under the IT ministry in the back burner and delay the developments.
Mr Rajeev Chandrashekar being the MOS in MeitY is another silver line and if he can assume stronger role in the affairs of the ministry, we can expect that there could be continuity in some of the policies related to Data Protection. At least in Rajeev Chandrashekar, we can expect a person who understands IT to the core. He was a successful IT entrepreneur, has an in depth understanding of technology and has been a member of the JPC as well. He is therefore the hope of Indian IT for the time being. We wish that under Mr Rajeev Chandrashekar, MeitY will be groomed to be an independent ministry in future, as IT is an all pervasive tool that can transform India into a real global giant.
It is time however to hope for the best and wait.
Naavi
While India is waiting to know if the Personal Data Protection Bill 2019 will be tabled and passed in the next Parliament session, the time for making further changes is running out. While most of the suggestions which have been placed before the JPC may be considered as having been examined, whether they would be accepted or not, new suggestions keep coming up.
These suggestions need to be introduced as amendments when the Bill is actually presented in the Parliament. Any MP whether from the ruling party or others can take up the amendment. However, given the general attitude of the opposition parties, even if individual MPs are good to take up issues of societal good, the party principles prevent them from expressing any opinion in support of any move of the Government. Hence we can only expect some ruling party MPs to suggest the changes as may be necessary.
After submitting my views to the Joint Parliamentary Committee, I have already brought to the attention of the authorities on one other minor change to Section 37 to ensure that Data Fiduciaries established in India and having data processing operations outside the country and related only to the processing of non Indian data subjects are given relief from the overlapping jurisdiction of multiple laws. (Subject to safeguards for preventing misuse which can be provided under the regulations of the DPA.). For this purpose, a small change has been suggested in Section 37 as indicated in the foot note here.
Another Suggestion for Education Sector
I would now like to highlight another amendment that I think would be good to make in the light of the changed circumstances in India arising out of the Covid situation applying to the education sector.
We all know that for the last two years, the Indian educational system has been disrupted and schools have been closed. Most part of the affected students have been minors. However in the process, alternate virtual schools emerged right from Pre-School kids to pre-graduation levels. These virtual education organizations some of which are extensions of the existing educational organizations provided continuity to the education system. These systems will continue even after the physical schools open up.
I recall that about a decade back, I had discussed a concept of “Cyber Vidya” and a proposal for a pilot project had also been given to the Karnataka Government to conduct all classes upto Standard X through a centralized virtual school. Detailed plan for the development of content, delivery of content and evaluation of students were presented. At that time the network availability was not as good as today and there were no operators like the Baijus etc.
As could be expected, the proposal was shelved. But the relevance of that decade old proposal is now evident in the Covid situation.
In this context, I feel that one of the sections of the proposed PDPB 2019 could hinder the progress of Virtual Education in India.
I refer to Section 16(5) which states as follows
The guardian data fiduciary shall be barred from profiling, tracking or behaviorally monitoring of, or targeted advertising directed at, children and undertaking any other processing of personal data that can cause significant harm to the child.
This provision will prevent the virtual educational organizations from evaluating the students though it is required for promoting the students from one level to another.
The profiling of the behaviour also happens in Games when people are promoted from one level to another. Many sportspersons like Abhimanyu and earlier Vishwanathan Anand who became Grandmasters in Chess were critically evaluated and monitored in their virtual gaming environment.
There is therefore a need to provide for some exemptions under Section 16(5) because the words “Barred” restricts the ability of the DPA to approve any particular processing situations from the operations of this section.
Perhaps replacing the words “shall be barred” with words “May be prohibited” may suffice. The DPA at the time of registering the Guardian Data Fiduciary and the Privacy By Design Policy can clear specific projects where the intention is not to exploit the children for advertisements on Chocolates or Maggie but to be used for other beneficial uses including monitoring of the educational progress.
Hope some MP like our own Mr Tejasvi Surya or Rajeev Chandrashekar takes up such amendments when the Bill comes for debate in the Parliament.
Naavi
Footnote: A suggestion made on Section 37 after the closure of JPC proceedings, requested to be taken up during the Parliamentary debate.
Current version:
Power of Central Government to exempt certain data processors.:
“The Central Government may, by notification, exempt from the application of this Act, the processing of personal data of data principals not within the territory of India, pursuant to any contract entered into with any person outside the territory of India, including any company incorporated outside the territory of India, by any data processor or any class of data processors incorporated under Indian law.”
Suggested version:
Power of Central Government to exempt certain Data Fiduciaries or data processors:
“The Central Government may, by notification, exempt from the application of this
Act, the processing of personal data of data principals not within the territory of India,
pursuant to any contract entered into with any person outside the territory of India,
including any company incorporated outside the territory of India, by any data
fiduciary or data processor or any class of data fiduciaries or processors incorporated
under Indian law.”
Another recommendation regarding this section has already been submitted to the JPC as follows:
Provided further that the terms in such contracts shall not contravene any applicable Indian law and No liability under the contract shall be enforceable against the Indian entity except with the prior approval of the Authority.
(Please refer point 16 in this document)
Also refer:
Naavi.org today maintains the website of www.naavi.org in which current news and events related to the field of Cyber Law is regularly discussed. Naavi.org also provides a platform for publishing video content for FDPPI and also has recently opened the You Tube channel.
The recently notified Digital Media Ethics code defines a digital publisher and suggests certain compliance measures related to digital publishing activities which are relevant to Naavi.org
For the purpose of the rules
‘publisher’ means a publisher of news and current affairs content or a publisher of online curated content;
‘news and current affairs content’ 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
‘digital media’ means digitized content that can be transmitted over the internet or computer networks and includes content received, stored, transmitted, edited or processed by… a publisher of news and current affairs content or a publisher of online curated content;
‘online curated content’ means any curated catalogue of audio-visual content, other than news and current affairs content, which is owned by, licensed to or contracted to be transmitted by a publisher of online curated content, and made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and other such content;
Part III of the guidelines published on February 25, 2021 is applicable for publishers of news and current affairs content; and publishers of online curated content.
The compliance requirements include the following
(a) establish a grievance redressal mechanism and shall appoint a Grievance Officer based in India, who shall be responsible for the redressal of grievances received by him;
(b) display the contact details related to its grievance redressal mechanism and the name and contact details of its Grievance Officer at an appropriate place on its website or interface, as the case may be;
(c) ensure that the Grievance Officer takes a decision on every grievance received by it within fifteen days, and communicate the same to the complainant within the specified time:
(d) be a member of a self-regulating body as referred to in rule 12 and abide by its terms and conditions
There is a possibility that unless exempted, we do fall within the definition of the Digital publisher in the rules.
Yesterday, there was an interaction with the Joint Secretary of MIB, Mr Vikram Sahay and discussed the need for supporting Micro digital publishers and small enterprises and the possibility of organizing a Self regulatory body of publishers (SRB) at Level II of which the digital publishers are to be members.
Naavi.org is taking further steps to remain in compliance of this requirement by registering as a Digital media publisher and thereafter catalyzing the setting up of a SRB-Level II to cater to the requirements of Micro and Small digital publishers.
Naavi
The Karnataka High Court yesterday issued an order restraining the UP Police from taking any coercive action against Mr Manish Maheshwari, Managing Director of Twitter Communications India Private Limited (TCIPL). (The order copy has still not been posted on the Court website. A report is available here)
The order is issued against the notice issued by the UP Police under Section 41A of the CrPC.
The section 41A states as follows:
41A. Notice of appearance before police officer.– (1)The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
Mr Manish Maheshwari had been issued a summons to appear before the UP police regarding investigations of the Gaziabad fake video case. He had requested for Virtual attendance which was not agreed to by the Police.
The “Coercive” action which is speculated here indicates that Mr Manish has the intention of not appearing for filing his statement in the manner in which the Police is authorized to take and therefore he is challenging them to arrest him.
Manish is contending that he is called a Managing Director but is only a revenue head and not responsible for uploading of content. Hence he is expected to deny any statement of value being given to the Police.
He is being represented by Advocate C V Nagesh and the case has been posted for further hearing on June 29.
It appears that a small incident of whether Manish has to give his statement in person in a Police Station in UP or through the video conferencing has been escalated to a petition in a High Court. It could have been solved by the UP police agreeing to either take the statement on the video and there after issuing an arrest warrant if required. Alternatively they could have also travelled to Bangalore and taken a statement in Bangalore with the assistance of the local police.
Court could have also ordered that the statement could be taken at the Police Station but a video recording of the statement be submitted to the Court later so that there would not be an interference in the duties of the Police.
The notice under Section 41A of CrPC is not an imminent arrest warrant and there was an option for Mr Manish Maheshwari to apply for an “Anticipatory Bail”. However, one additional step in litigation involving the time of the High Court has been introduced by first taking this restraining order and then if UP police issues an arrest warrant, hide and apply for a bail.
This is a game played by most resourceful criminals to use the judicial system to drag the trial. If Mr Manish wants, he may even abscond and leave the country like Nirav Modi et.al.
In the pleadings, the petitioner has indicated that Supreme Court had earlier agreed for recording of the Virtual statement and is now claiming it as a matter of “Right”. If the Karnataka High Court agrees to this contention, then every witness will be able to claim as a matter of right that the statement with the Police under Section 160 of CrPC has to be taken virtually.
It would be interesting to see if this incident is taken to the extent of creating such a precedent.
As far as Twitter is concerned, it is at war with India and all these cases are only instruments of war. Hence they will use all tricks to bleed India by thousand cuts by exploiting every small loophole in the procedures which are meant for a different context other than a war situation.
It is necessary for the UP Police to impress upon the Court that they had invited Mr Manish Maheshwari as a witness in a cognizable offence. He is holding the designation of a “Managing Director” and under the Indian Companies Act, there are duties and responsibilities cast on a Managing Director. By definition of the “Managing Director” he is a person entrusted with substantial powers and is capable of representing the company in all business and legal requirements.
Hence invoking Section 41A appears to be misplaced.
Even if Twitter Communications India Private Limited (TCIPL) is responsible for revenue and Twitter Inc, USA is managing the uploading, TCIPL earning revenue in India with the uploading of the postings in the micro blogging website will be the “Principal” appointing Twitter Inc as its “Agent” for technical services of uploading.
Hence the Managing Director of such a company should be liable for the actions arising out of the content. Under Section 85 of ITA 2000, if the offence is attributable to a Company, the person in charge of the business including the Managing Director “Shall be guilty”.
Twitter has assumed the role of a “Publisher” and is a “Publisher” because it is a “Blogging Site”. It also executes editorial content of approving membership of account holders, verifying their identity, deciding whether a content is “manipulated” or not and even takes its own coercive action to block a user from expressing himself on the platform even if he is the sitting president of the United States of America.
If tomorrow the Karnataka High Court passes an order against Twitter, there will be a series of criticisms on Twitter from “Verified Accounts” and this same Court will have to worry about “Contempt of Court”. (Eg: Kolkata High Court Judge hearing the Mamata Banerjee election case facing a social media trial).
A Company which has held the sitting, elected US President in contempt because it wanted to politically support his opponents and is taking a similar stand in India to oppose the elected Government and supporting the political opponents, is not an “Independent Media” requiring protection of the Indian democratic principles. They have to be treated as a political entity trying to bring about a regime change in the country.
I wish the Courts will shed their attitude to cater to the sentiments of populism and take a stand within the legal confines to protect the integrity of the sovereign nation. If the Managing Director of a subsidiary of a US Commercial entity can refuse to abide by the rules framed under an Act passed 21 years back and say its company rules are binding on it and they consider it above the Indian legal requirements, then it is mocking at the Indian sovereign powers.
In case Twitter tomorrow refuses to accept the order of the Karnataka High Court that its corporate policies donot recognize the laws of India, the Judges who support Twitter today under the false contention of “Freedom of Speech” will have to eat their own words.
No doubt there is a large section of press who would hail such judgements as “Upholding the democratic principles” etc and the Judges will get their photographs on all news papers. But the responsibility of a judge is towards protecting the Country and if in the process unpopular decisions have to be taken, they need to have the conviction for National good to take such decisions.
Advocates who play around technicalities to save murders and terrorists escape punishments should not be allowed to dictate the Judgements that will in the long run erode the authority of the Indian Government.
Let us therefore wait and watch whether Karnataka High Court will pursue the headline “Court protects Twitter” or “Court protects Indian sovereignty”.
In the current case, it is a speculation that Mr Manish will be arrested and based on the speculation and not a fact. If the Court agrees to the petitioner’s contention that UP Police should be restrained then they will be acting on speculation. In many anticipatory bail cases, Courts refuse to grant anticipatory bail if there is no reasonable apprehension of arrest such as a FIR. Similar restraint is warranted in this case also.
We all know that the Courts themselves are struggling to conduct virtual hearings which are fair and legal. It is therefore difficult to presume that the UP Police will be able to have a fair virtual interaction with a potential witness without ensuring that his battery of lawyers will be hiding behind him when he is recording his statements.
If the Karnataka High Court wants to provide the privilege to Mr Manish to claim Virtual Statement as a matter of right, they will have to provide the guarantee that the statement will be provided without coercion and lawyer’s guidance. Perhaps they will have to consider that the statement will be recorded in the presence of the High Court judge in his chambers without the presence of the lawyers.
Any other order will be creating an unwanted precedence which the Court will regret.
It is necessary for the High Court to also consider live web broadcast of the continuation of hearing on June 29. Will they consider?
Naavi
Also see the video here:
