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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)

Hot Off The PressNews

Instances of lynching of innocent people have been noticed recently because of large number of irresponsible and explosive messages filled with rumours and provocation are being circulated on WhatsApp. The unfortunate killing in many states such as Assam, Maharashtra, Karnataka, Tripura and West Bengal are deeply painful and regrettable. While the law and order machinery is taking steps to apprehend the culprits, the abuse of platform like WhatsApp for repeated circulation of such provocative content are equally a matter of deep concern. The Ministry of Electronics and Information Technology has taken serious note of these irresponsible messages and their circulation in such platforms. Deep disapproval of such developments has been conveyed to the senior management of the WhatsApp and they have been advised that necessary remedial measures should be taken to prevent the proliferation of these fake and at times motivated/sensational messages. The Government has also directed that spread of such messages should be immediately contained through the application of appropriate technology. It has also been pointed out that such a platform cannot evade accountability and responsibility especially when good technological inventions are abused by some miscreants who resort to provocative messages which lead to the spread of violence. The Government has also conveyed in no uncertain terms that WhatsApp must take immediate action to end this menace and ensure that their platform is not used for such malafide activities.

Ministry of Electronics & IT

Case BriefsHigh Courts

Bombay High Court: The Court accepted service of notice through WhatsApp messenger after finding that the notice served was not only delivered, but the attachment was opened as well.

The claimants had filed the execution application against the respondent who was evading all their calls and efforts by legal representatives to reach out to him. He has been evading service of notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908. After tracing his number, a notice was sent to him informing him about the next date of hearing. Notice was served by an authorised officer of the claimant by sending a PDF and message to his mobile number as a WhatsApp message.

The Bench of G.S. Patel, J. accepted this for the purposes of service of Notice under Order XXI Rule 22 as the icon indicators clearly showed that not only was the message and its attachment delivered to the respondent’s number but that both were opened as well. [SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav,2018 SCC OnLine Bom 1262, order dated 11-06-2018]

Case BriefsSupreme Court

Supreme Court: In the light of the data privacy concerns raised before the Court in the matter relating to Whatsapp data sharing with it’s parent company Facebook, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, Amitava Roy, AM Khanwilkar and MM Shantanagoudar, JJ asked Senior Advocates Kapil Sibal and Arvind Datar, appearing for Whatsapp and Facebook, to file affidavits with regard to the assertions made by the petitioners within 4 weeks.

Additional Solicitor General Tushar Mehta brought to the Court’s notice that a committee headed by Former Supreme Court judge, Justice B N Srikrishna, was being formed to deliberate on a data protection framework for India keeping in mind the need to ensure growth of the digital economy while keeping personal data of citizens secure and protected. He further submitted there was a possibility that the law shall be passed regulating the data protection once the committee submits it’s report. Arvind Datar also submitted that the 9-judge bench, in Justice KS Puttaswamy v. Union of India, 2017 SCC OnLine SC 996, had expressed the view that there should be a law with regard to data protection.

Refusing to pass any interim order restraining the respondent from sharing the data with the third party, the Court said that it will consider passing interim order after the affidavits are filed and if the assertions made in the affidavit would not require any kind of intervention by this Court, this Court may not pass any interim order. The matter will next be taken up on 20.11.2017. [Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 1051, order dated 06.09.2017]

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Supreme Court: While the issue relating to ‘right to privacy’ is under consideration before a 9-judge bench, the Centre today told a 5-judge bench of Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ  in the matter relating to Whatsapp data sharing with it’s parent company Facebook, that the data of users is integral to the right to life and personal liberty guaranteed under the Constitution and it would come out with regulations to protect it.

The submission of the Central Government is important in the light of the ongoing Aadhaar proceedings that prompted the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ to refer the ‘right to privacy’ matter to a 9-judge bench. The petitioners have vehemently argued before the 9-judge bench that ‘right to privacy’ should be declared as a fundamental right under Part III of the Constitution. The Union of India will be making it’s submissions in the matter on Tuesday. ‘Right to privacy’ has not been specifically recognised in the Constitution as a fundamental right and that is why the Court has interpreted the said right differently in different case.

Source: HT

Case BriefsHigh Courts

Bombay High Court: A Bench comprising of G.S. Patel, J , has held that the Indian Judiciary system is flexible enough to consider a notice issued through ‘Whatsapp’ or through email admissible in the court of law. It is not necessary for the plaintiff to go through extreme measures like that of a bailiff or through the ‘beat of a drum’ for the notice to be considered as properly served. The defendants were duly notified in the eyes of the court.

The facts in brief are the plaintiff obtained the original rights of a Korean movie for a Hindi remake but soon found the Kannada remake of the film which was made without obtaining the rights of the movie. The plaintiff in this case sent a notice through ‘Whatsapp’ to the defendant. The defendant took the stand that he hadn’t received the notice but the receipt on the delivery of the message was shown. The Court held this method of giving noticeable as valid and also granted temporary and interim injunction against the defendant or any person related to the defendant or working with/ for the defendant by restraining them from making the film available available for showing to the public in any manner or form. [Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production, 2017 SCC OnLine Bom 1433, decided on 27-03-2017]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Bench of Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ listed the matter relating to Whatsapp data sharing with it’s parent company Facebook on 27.04.2017.

Harish Salve, appearing for the petitioners had argued that the policy that is formulated by WhatsApp is unconscionable and is unacceptable and also suffers from constitutional vulnerability since it maladroitedly affects the freedom which is a cherished right of an individual under the Constitution. Mukul Rohatgi, the Attorney General for India has submitted that there is going to be a regulatory regime to save the data base to guide the concept of net-neutrality.

On the other hand, Kapil Sibal, appearing for Whatsapp, argued that WhatsApp does not share data protection of voice and messages, so no part of the content which is exchanged between two individuals is ever revealed to third party and that their action is compliant with Section 79 of the Information Technology Act, 2000.

It was argued by Kapil Sibal that the matter could not have been referred to the Constitution Bench without framing the questions that needed to be referred. Harish Salve, resisted the argument by stating that the foundation that the direction for listing the matter before a five-Judge Bench need not be treated as a reference as postulated under Article 145 of the Constitution of India. He said that the Chief Justice of India is the master of the roster and he has the authority on the administrative side to place the matter before a five-Judge Bench regard being had to the gravity, significance and importance of the matter. The Court, however, said that it will look into this preliminary objection at the time of delivery of the final verdict. [Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 434, order dated 18.04.2017]