Case BriefsSupreme Court

Supreme Court: In the bid to gather information from intermediaries regarding the names of the originators of any message/content/information shared on the platforms run by these intermediaries, the Court has asked the Ministry of Electronics & Information Technology to file an affidavit within three weeks placing on record the stage at which the process of framing/notifying the rules is at. The Court also asked the Secretary to give definite timelines in respect of completing the process of notifying the rules.

The bench of Deepak Gupta and Aniruddha passed the order in the light of the fact that there are various messages and content spread/shared on the social media, some of which are harmful.

“Some messages can incite violence. There may be messages which are against the sovereignty and integrity of the country. Social media has today become the source of large amount of pornography. Paedophiles use social media in a big way. Drugs, weapons and other contrabands can be sold through the use of platforms run by the intermediaries.”

The bench, hence, noticed that in such circumstances, it is imperative that there is a properly framed regime to find out the persons/institutions/bodies who are the originators of such content/messages. It may be necessary to get such information from the intermediaries.

Some intermediaries, however, submitted that they cannot provide information either with regard to the content or with regard to the originators because they have end to end encryption and therefore, even the intermediaries are not in a position to find out who is the originator or what is the content.

On the said issue, the Court noticed that

“de-encryption, if available easily, could defeat the fundamental right of privacy and de-encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded. However, at the same time, the sovereignty of the State and the dignity and reputation of an individual are required to be protected.”

It, hence, said that for purposes of detection, prevention and investigation of certain criminal activities it may be necessary to obtain such information. De-encryption and revelation of the identity of the originator may also be necessary in certain other cases, some of which have been highlighted hereinabove.

After Solicitor General Tushar Mehta told that the Court that  the matter is under active consideration of the Union of India and that the draft rules in this regard have already been framed and are only required to be notified, the Court asked Solicitor General to take complete instructions in the matter.

[Facebook Inc. v. Union of India, 2019 SCC OnLine SC 1264, order dated 24.09.2019]

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Supreme Court: While hearing Facebook Inc’s petition asking Supreme Court to hear all cases related to demands for linking Aadhaar to social media accounts and tracing the source of WhatsApp messages, the Court said that there has to be a balance between privacy and how to govern. The court, hence, issued notice to Facebook, Twitter, Google, YouTube, the centre and Tamil Nadu asking for their response by September 13 on whether the petitions should be transferred from high courts across India to the Supreme Court. Various cases are being heard by the high courts of Madras, Bombay and Madhya Pradesh and Orissa.

The Court said,

“There is a conflict between privacy and how the government should run the country when crimes are committed. There has to be a balance… under what condition information can be given and to whom,”

Facebook and WhatsApp, asking that all petitions be transferred to the top court, said it was a matter of high magnitude and affected the privacy of the entire nation.

On Monday, the Tamil Nadu government had told the Supreme Court that social media profiles of users need to be linked with Aadhaar numbers to check the circulation of fake, defamatory and pornographic content as also anti-national and terror material. However, Facebook Inc resisted the state’s suggestion on grounds that the sharing of the 12-digit Aadhaar number, the biometric unique identity, would violate privacy policy of users.

Facebook Inc said it cannot share the Aadhaar number with a third party as the content on its instant messaging WhatsApp was end-to-end encrypted and no one can access it.

The Tamil Nadu government, which is deep into a case related to the deadly Blue Whale game, argued that the centre was struggling to find out who the creator of the game was and who gives directions. Attorney General KK Venugopal, representing Tamil Nadu, said,

“Someone says he is a young person from Russia. A number of people have died in India playing the Blue Whale. Let the Madras High Court continue with its hearing,”

The Supreme Court said,

“We are aware of Blue Whale. What is happening in dark web is worse than Blue Whale. The idea of the Madras High court expanding the issue was that if need be, shouldn’t the intermediary inform the police about details of person for crime detection? We are not examining the merits of the case, only dealing with the transfer of the cases to the Supreme Court.”

(Source: NDTV)

Case BriefsHigh Courts

Punjab and Haryana High Court: While addressing a bail application under Section 439  CrPC, 1973, the Single Judge bench of Sudip Ahluwalia J., explained the fundamental nature and essence of the constituents that would amount to waging war in respect of social media platforms.

The brief facts of the case state that the petitioner was charged under Sections 121/121-A of IPC and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967.  For the charged offences petitioner claims that they are not established on prosecution material.

The contentions on behalf of the petitioner which have been placed before the court take reliance from the decision of the Apex Court in , Balwant Singh v. State of Punjab, (1995) 3 SCC 214, in which conviction was placed upon for the offences under Sections 124-A and 153-A Indian Penal Code, 1860 and was further set aside by stating that “The learned trial Judge, to say the least, seems to have drawn upon his imagination a course not permissible for a Court of Law.”

The counter placed on behalf of the State was that, petitioner’s involvement was not only in propaganda and inciting people to resort to violence leading to waging war against the Government of India, in fact, it also constituted provocative messages from leaders of terrorist groups based in Pakistan on social media/ facebook which is accessible to innumerable people around the world.

Therefore, the Hon’ble High Court on noting the facts of the case stated that in the present case the reliance placed by the petitioner on the case of Balwant Singh v. State of Punjab, (1995) 3SCC 214 would not be applied. In the instant case the incitement is on social media platform which is accessible to the world and not just a limited crowd as was the case in the relied case of the Supreme Court, further bail was not granted and the petitioner was stated to be liable under Section 122 of IPC which is at par punishable with Section 121-A for which he is already facing trial. [Arvinder Singh v. State of Punjab, 2018 SCC OnLine P&H 762, dated 01-06-2018]

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Supreme Court: In the plea filed by a man whose wife and daughter were allegedly gangraped in July last year on a highway near Bulandshahar, seeking transfer of the case to Delhi and lodging of an FIR against former Uttar Pradesh Minister Azam Khan for his controversial statement that the gangrape case was a “political conspiracy”, the bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to a five-judge constitution bench to decide the question as to whether a public functionary or a minister can claim freedom of speech while airing views in a sensitive matter which is under investigation.

The Court also expressed concern over the misuse of social media platforms and said that people disseminated wrong information even about the court proceedings. Senior Advocate Fali S. Nariman, who is assisting the bench as an amicus curiae, submitted before the Court that a lot of misinformation and abuses are there on social media platforms and he has stopped looking at them. To this, Senior Advocate Harish Salve added that he had deleted his Twitter account.

The Bulandshahar rape case happened on the night of July 29 last year when a group of highway robbers stopped the car of a Noida-based family and sexually assaulted a woman and her daughter after dragging them out of the vehicle at gun-point. Azam Khan had, in a public address, termed the entire incident as a “political conspiracy only and nothing else”. Harish Salve submitted before the Court that ministers cannot have personal views on official business matters as whatever the person says, must reflect government policy.

Last year, on 29.08.2016, the Bench of Dipak Misra and C. Nagappan, JJ had asked Fali S. Nariman to assist the Court in determining, inter alia, whether the fundamental right of speech and expression would be governed under reasonable restriction of decency or morality or whether other preferred fundamental rights would also have an impact on it.

Source: PTI