Naavi.org

Over the last few days, developments regarding Cyber Law in India have overwhelmed most of us and left us engaged full time on following the developments.

In these discussions the future role of digital media is being re-defined and consequently  introduced some complications that require to be resolved quickly.

ITA 2000/8 identified “Intermediaries” which required a safe harbor provision to ensure that the mere act of being a conduit of a message does not make the intermediary liable for any contravention of law by the user of the intermediary service.  While this definition was more suitable for ISPs and MSPs, the inclusion of other services such as E Commerce platforms in the 2008 version introduced some confusion.

The definition of an intermediary under ITA 2000 version was

“Intermediary” with respect to any particular electronic message means any  person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;”

In amended version passed in 2008 and notified on 27th October 2009, the definition was expanded as follows.

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

The introduction of additional services as an explanation mixed up “Intermediaries” with entities which exercised control on the messages like what Twitter does. The moment an organization exercises control on initiating the transmission, selecting the receiver of the transmission and selecting or modifying the information contained in the transmission, they lose the status of an intermediary. Hence only such of those platforms which retain minimal control (excepting mandated control by law) will be eligible to be called Intermediaries. Most of the E Commerce platforms may have a small part of their activities such as “Advertising” in which they will be intermediaries. But in rest of their activities, they will not come under Section 79 but will fall under Section 43A for seeking any protection against vicarious liabilities.

In the meantime, PDPB 2019 introduced a term “Social Media Intermediary” stating

 “social media intermediary” is an intermediary who primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services, but shall not include intermediaries which primarily,—

(a) enable commercial or business oriented transactions;

(b) provide access to the Internet;

(c) in the nature of search-engines, on-line encyclopedias, e-mail services or on- line storage services.

The objective of this definition was to state that Social media intermediaries above a threshold of user base were to be classified as “Significant Data Fiduciaries” and were required to provide a voluntary technological means for users to identify themselves and display that identity in front of their messages.

With these statutory definitions behind us, the Intermediary Guidelines and Digital Media Ethical Code of February 25, 2021 gave further definition of a Social Media Intermediary as

‘social media intermediary’ means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services;

While the PDPB 2019 definition excluded the normal intermediaries such E Commerce entities, ISPs and search engines, the definition in the Intermediary guidelines was an extension from the definition of intermediaries without a proper explanation of what it does not include.

At the same time, the Intermediary guidelines defined the “Digital Media” as

‘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-
(i) an intermediary; or
(ii) a publisher of news and current affairs content or a publisher of online curated content;

The Intermediary guideline also defined the “News and Current Affairs Content” so that a digital media who is also a publisher of of news and current affairs content could be identified for application of the ethical code and the self regulation.

This defined news and current affairs content as follows

‘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.

From out of these “Social Media Intermediaries”, the class of “Significant Social Media Intermediary” was defined with a user base of 50 lakhs and above and were subjected to the specific guidelines as envisaged in the notification. Some part of the guideline such as the Grievance redressal as well as furnishing of information was applicable to a “Publisher of news and current affairs content and publisher of online curated content operating in India” for which a form was notified on May 26, 2021.

One important part of the guideline was that the “Publisher” was to preserve records of content transmitted by it for a minimum period of 60 days and make it available to the self regulating body of the Central Government.

All publishers were also required to follow the Level I self regulating mechanism which included the establishment of a grievance redressal mechanism, display of contact details etc and to become a member of a self regulating body formed under Level II.

The self regulatory bodies under Level II were to get themselves registered with the MIB.

In this entire maze of definitions and compliance requirements, many bloggers and companies publishing digital information are confused if they come under the definition of a “Digital Media” or a “Publisher” and whether they need to have new compliance measures.

We must consider that the regulations are evolving and there are many grey areas that need to be clarified.

Unfortunately the Level III regulatory mechanism which includes designation of a an “Authorized Officer” and publishing of a charter for self regulating bodies including Codes of Practices for such bodies has not yet been announced  by the MIB.

Without the MIB coming up with the Charter under which the Level II self regulatory bodies get themselves registered, Level I self regulation cannot be completed.

Further if the Level II regulatory bodies are headed by a retired Supreme Court judge etc, they will tend to be high cost bodies and the cost of maintaining a membership with such organizations will be prohibitive except for large digital publishing entities.

Currently these regulations are applicable (Clause 8 of the February 25 notification)  to all publishers where such publisher conducts systematic business activity of making its content available in India.

 “systematic activity” shall mean any structured or organised activity that involves an element of planning, method, continuity or persistence. 

Naavi.org has been trying to understand the applicability from the perspective of a website such as Naavi.org or FDPPI.in or dpji.in  or privacy.ind.in, etc. Obviously it is a question of interpretation whether Naavi.org is a “Digital Publishing” activity for the purpose of these regulations because it includes publication of some news and analysis of news.

The legislative intent of the notification obviously does not appear to make every blog owner register himself or even if he registers himself for the purpose of “Contact information” and “Grievance officer”, make it mandatory for him to be a member of a self regulatory body and incur costs.

Hence there is an urgent need for the MIB to clarify that ” Mandatory membership with a Level II Self Regulatory Body” is not applicable to all web site/blog owners.

Hence Rule number 11(2)(d) should be applied only to “Significant Social Media Intermediary” and not to all “Publishers”.

I request MIB to issue a clarification on this immediately since some Level II Self Regulatory Bodies are speaking of membership fees of Rs 50,000/- and above and it is unthinkable for blogs like Naavi.org to pay such fees.

If MIB remains silent, then there will be a new scam of Level II self regulatory bodies using this opportunity for exploiting small digital media establishments.

It must however be noted that at present, the February 25th notification is under Section 79 of ITA 2000 and hence does not come with any direct penal provisions. Hence no fines can be imposed for non compliance nor the non complying organizations will be required to shut down operations. The only loss if any would be the safe harbor protection.

Instead of letting the uncertainty prevail, it is better for MIB to provide a clarification that  a non significant social media intermediary needs to conform only to rule 11 (2) (a),(b) and (c) and membership of the Level II self regulatory body is optional.

In the meantime, Naavi is encouraging some like minded persons to come together in establishing  Level II Self regulatory body which will not charge Rs 50000/- membership and managed by media professionals though it is not headed by a retired Supreme Court judge.

Further, it must be recognized that just as PDPB 2019 declares that the regulator (DPA) is himself a Data Fiduciary, a Level II self regulatory body will also require to introduce  Level I self regulation. In other words the Level I and Level II regulation will be managed by the same organization unless the Government makes it mandatory that Level II self regulatory bodies introduce some cross certification of their self regulatory process. Alternatively, “Peer Review of Self Regulation” can be opened out to all Level I self regulation of non significant social media intermediaries.

It is possible that the Government has not thought through all these issues and were forced to fast track the system due to the Twitter controversy. But it would be necessary to fine tune the procedures to ensure that it does not create confusion in otherwise compliance oriented establishments.

(Comments are welcome)

Naavi

(Continued from the earlier article)

The Delhi High Court judgement upholding the Right to forget of a person accused, tried and acquitted (on technical grounds) for Narcotics smuggling, 8 years after the initial judgement throws open a challenge to the Data Privacy community about how law should handle with such requests.

The Orissa High Court judgement which is a more comprehensive judgement was a different kind of situation where the honour of a lady who was a victim was involved.

The Delhi Judgement upheld the right of a person who prima facie was caught red handed but in the views of the Court , the investigators did not secure the evidence properly.  The judgement ordered removal of search results  not only from Google type of general search engines but also from Indian Kanoon which is a legal search facility.

Further if the Delhi High Court judgement becomes a precedent, all cases in which acquittals have taken place have to be removed from legal data base such as India Kanoon. The libraries will also have to remove access to such judgements through search facilities.

In other words, the implementation of this judgement would seriously jeopardize legal education in the country.

If India Kannon cannot provide search results of all acquittal cases, then they will have to remove hundreds of such cases.  If India Kanoon has to be disallowed then Wstlaw or LexisNexis or Manupatra also have to be disallowed.

More importantly, the “Right to Forget” alters a factual information and no news papers can keep the data in their publications which have long become part of the news archives.

If a person has been charged and arrested, it is a fact. In case it was a false case, one can sympathize with the person but atleast to safeguard the information the data has to be available for the use of the posterity. By asking such data to be removed from access, the Court is trying to alter the face of history.

Further when the Right to Forget request comes after several years, a question also arises whether there should be a time limitation before which the right has to be invoked.

The decision of the Delhi High Court is therefore un implementable as a principle and will stand out as a special case courtesy the appeal. Any case in which acquittal has been granted, the information will contain the acquittal information and if some body manipulates the news and publishes only the accused part and does not provide the information of acquittal if it was available at the same point of time, it may be considered as unfair and “Inaccurate”. Under the “Right to Correction” the data subject may demand that the fact of acquittal is published wherever the  information of accusation or trial or punishment is published.

If this issue is not sorted out by an appeal to the division bench of the Delhi High Court, and Right to Forget is not made like the death sentence which is available only in the rarest of rare cases, we will be doing a great injustice to the legal education.

I wish Indian Kanoon challenges this order and donot meekly accept the order. We may appreciate that the Indian PDPB 2019 subjects Right to forget as a matter to be referred mandatorily to the Adjudicator, in the GDPR, the decision vests with the Company.

Hence if a person has an adverse news about him on the Internet which amounts to a criminal track, by asking for exercising the right to forget, the information can be removed. While this cannot be implemented in print news papers, only the digital news papers would be required to follow this rule.

Companies which are doing “Background Verification”  to check if a prospective employee has in fact committed any fraud or terrorist activities in his previous assignments will find that no information may be available anywhere. As a result Cyber Crime prevention will be seriously affected.

I would like the Law Enforcement to take this issue strongly and oppose the decision of the Delhi High Court. Otherwise criminals cannot be traced for past offences. In many sections of IPC, different punishments are prescribed for first commission of an offence and the subsequent commission. Now information about this would be impossible to get except in rare instances where a lawyer or a judge may remember the past incident.

I therefore request the Narcotics Board to appeal against the decision in which the legal research websites like India Kanoon, Manu Patra as well as Background verification companies in the HR field and perhaps the MHA itself should file intervention petitions.

If possible this should be tried as a PIL since erasing from memory a potential repeat offender because the earlier conviction failed is an invitation for further crimes. In trying to protect the Right of an acquitted criminal, the Delhi High Court has forgotten the Rights of the society to ensure that potential repeat offenders will go un noticed.

This is not to say that a person cannot be reformed and cannot be a useful member in the society just because he once committed an offence. After all most of us might have committed traffic offences and if we exercise our right to forget, our driving license will always be clean. If a person has been charged, however unfortunate it was, it is a matter of fact which no body can block from the “Right to Information”. This principle has to be established in a review petition or an appeal against this verdict.

Naavi

Three Judgements to follow

Orissa High Court Judgement

Delhi High Court  Trial 29th January 2013

Delhi High Court 12th April 2021

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