2021: A year of standing for your digital rights in courts

As a digital liberties organisation, IFF’s mission statement is to ensure that Indian citizens can use the internet with liberties guaranteed by the Constitution. To that end, we engage in strategic litigation to defend the rights of the litigants that approach us and make incremental changes in society. In 2020, as all of us relied on digital connections more than ever, issues such as access to the internet, surveillance, censorship and data protection gained prominence. IFF rose to action to defend these threats against civil liberties and, on behalf of litigants, challenged the 4G mobile internet ban in Jammu & Kashmir, questioned the mandatory imposition of Aarogya Setu, sought an extension to the consultation process for the Health Data Management Policy, and called into question illegal website blocking.

In 2021, we continued our work on these issues while responding to greenfield challenges such as the Pegasus Spyware, governmental regulation of digital space, copyright infringement suits and anti-competitive practices of big tech. In this post, we provide you with a snapshot of our work that defends your rights. As always, we are thankful to our members for enabling us to perform this important task, the litigants (mentioned below) for trusting us with their cases and the litigators who spent countless hours working pro bono.

2021 in numbers

2021: A snapshot of our work before courts/regulatory bodies

We began 2021 with optimism. As the country was recovering from the pandemic, we hoped civil liberties on the internet would be respected. The year has been anything but that - our entire team was diagnosed with COVID-19, and once we recovered we found it difficult to get our urgent cases listed before courts because of pendency. All this while, digital rights faced one threat after another. Despite difficulties, we responded to these threats and we have detailed our responses below:

A: Challenged constitutionality of excessive government regulation of the internet:

The year started with the Union Government notifying Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘Rules’). Part II of these rules compel social media websites to censor speech and undermine privacy, and Part III subjects over-the-top content providers and digital news media to the unfettered oversight of the Union Government.

Action: As soon as these Rules were notified, we were approached by LiveLaw Media Pvt. Ltd. (‘LiveLaw’) which was concerned with the impact of the Rules on their freedom of expression. On behalf of Livelaw, we filed a writ petition in the Kerala High Court seeking a declaration that the Rules were unconstitutional. Subsequently, we also filed a writ petition in the Madras High Court on behalf of Mr TM Krishna - a prominent musician - who felt that the Rules violated his right to speech and privacy on social media.

Impact: In March, we obtained an order restraining the Union Government from taking any coercive measures against LiveLaw under the Part III of the Rules. In September, the Madras High Court stayed provisions of Part III of the Rules and subjected any decision under Part II to the final decision in the petition.

B: Ensure equitable access to vaccines during the second wave of the COVID-19 pandemic:

Soon after the Kerala High Court restrained coercive action under Part III of the Rules, there was a sudden rise in COVID-19 cases. In this period, as the country was in the throes of a disastrous public health emergency, the Union Government launched the CoWIN portal and made registration on it mandatory for accessing vaccines.

Action: Concerned with the exclusionary nature of the portal, we prepared two notes for Mr Rajshekhar Rao, Sr. Advocate. Mr Rao had been appointed as amicus curiae by a two-judge bench of the Delhi High Court to assist in proceedings related to the governmental response to the second wave. He placed the notes before the bench. In our note, we offered 4 easy implementable suggestions that could immediately improve the accessibility and privacy features of the platform.

Impact: In June, the two-judge bench passed a detailed order issuing directions to the Union Government, which accepted all 4 of our suggestions. These directions have contributed towards ensuring that vaccines are accessible to all.

C: Assisted PUCL in approaching Supreme Court to prevent continued prosecutions under the unconstitutional S.66A:

In July, People’s Union for Civil Liberties approached the Supreme Court seeking directions to ensure that individuals are not prosecuted under Section 66A of the Information Technology Act, 2000 which the Supreme Court struck down in Shreya Singhal vs. Union of India & Ors., (2015) 5 SCC 1.

Action: We provided legal assistance to PUCL in drafting an application that highlighted the data on Zombie Tracker - a platform that we built in collaboration with Civic Data Labs to track cases that include a charge under S.66A.

Impact: As a result of the application, the Ministry of Home Affairs issued a notification directing law enforcement authorities to stop registering cases under S.66A, and withdraw pending proceedings. The Supreme Court has issued notice on the application to all State Governments and High Courts in India. Several State Governments and High Courts have filed affidavits disclosing exactly how many cases under S66A of the IT Act are currently pending in their respective jurisdictions.

D: Enabled the victims of the Pegasus Spyware approach the Supreme Court:

Also in July, the Pegasus Project - an international consortium of journalists - revealed that over 300 mobile phones including those belonging to ministers, opposition leaders and journalists were targeted by the Pegasus Spyware which is sold by NSO to ‘vetted governments’.

Action: We assisted Mr Rupesh Singh and Ms Ipsa Shatakshi who are activists based in Jharkhand and whose numbers were in the leaked database, to approach the Supreme Court. In the petition, they sought a declaration that the use of the Pegasus Spyware is unconstitutional and a direction to the Union Government to disclose documents related to the spyware. We also provided legal support to other members of the civil society who were targeted by the Pegasus Spyware.

Impact: In October, the Supreme Court constituted a committee to examine the allegations raised in the petitions before them. This is an issue of immense magnitude, and we look forward to assisting the committee.

E: Provided support to the Competition Commission of India in its investigation of WhatsApp’s 2021 Privacy Policy:

This year we also decided to further the cause of digital rights before bodies other than courts. We believe that in an age where digital rights are threatened not just by the government but also by private corporations, regulatory bodies such as CCI are important avenues to secure justice.

Action: In September, we filed information before the Competition Commission of India (‘CCI’) highlighting how WhatsApp abused its dominant position in the messaging apps market to secure the position of other Facebook companies in the digital advertising market by unilaterally imposing a privacy policy on users in India which enables it to collect and share excessive data among the Facebook group companies.

Impact: In October, CCI accepted our information and tagged it with an existing case that was being investigated by the Director-General. As a result, we are now a party to the case and will be able to assist the CCI through the course of the proceedings. We have placed material before the CCI which will enable it to appreciate the detrimental impact of WhatsApp’s data collection practices on Indian users.

F: Approached the Delhi High Court seeking statistic information on the extent of surveillance in India:

As we took up new work, we also continued to follow up on our previous work. Back in 2018, we had filed six RTI applications seeking information from the Ministry of Home Affairs (‘MHA’) on the total number of orders passed for the interception, monitoring or decryption of electronic information under Section 69 of the Information Technology Act, 2009. The MHA refused to provide this information on the grounds of national security.

Action: We appealed to the Central Information Commission (‘CIC’) which after two years held that information could not be denied on that ground, and remanded the matter back to the Ministry. MHA again refused to provide information, this time on the ground that they had destroyed the information. We appealed to the CIC but we realised that our case would not get listed because of pendency. Thus, we approached the Delhi High Court.

Impact: The Delhi High Court has directed CIC to dispose of our appeal within eight weeks. The CIC is yet to decide the case, and we will update you when it does.

Apart from the above, in 2021 we also expanded our docket to provide legal representation in copyright infringement suits. Three prominent publishers had filed a copyright infringement suit in Delhi High Court against LibGen & Sci-Hub that enabled researchers worldwide to access knowledge without cost. In their suit, they have asked the court to block these websites permanently. We provided legal support to social science researchers in filing an intervention application which highlighted the adverse impact any decision to block the websites will have on them. The Delhi High Court has issued notice to our application, and it is listed for 18.02.2022. We have also filed a case on behalf of a union of journalistic challenging the draconian Section 124A of the Indian Penal Code, 1860. We will provide you with more details once our petition is heard by the Supreme Court.

IFF’s litigation team seeks to effect incremental change through sustained litigation efforts focusing on strategic objectives. This may be a long-term process, and sometimes results are not visible for months or years. These outcomes also focus more on the wider constitutional results, rather than individual litigants.  We have also recognised the need for protecting the rights and freedoms of individuals, while we implement our long-term strategic litigation. To that end, we established the Digital Patrakar Defence Clinic in September 2021, to represent journalists who face legal threats as a consequence of their reportage. More about the Clinic’s activities here.

2021: Beyond courts

The legal work at IFF is not limited to representing litigants before courts. From time to time, we dispatch legal notices, applications and representations to public authorities.

A: Questioned an order which prohibited criticism of the government on social media:

During the second wave of the pandemic, the Collector, Indore prohibited any ‘unrestrained’ comment on social media related to the governments’ efforts of breaking the COVID-19 transmission chain.

Action: We submitted an application under Section 144(5) of the Code of Criminal Procedure, 1972 arguing that overbroad restriction of speech violated fundamental rights.

Impact: As a result of our application, the Collector amended their order and limited it to posts on social media that pose a danger to public peace, law and order and public health.

B: Submissions to the Commission of Inquiry established by the Government of West Bengal:

In July 2021 the Government of West established a Commission of Inquiry (the  Commission’) headed by Justice Lokur and Justice Bhattacharya to investigate the revelations related to the Pegasus Spyware. In August, the Commission invited statements from individuals interested in assisting them.

Action: In September, we submitted our first statement to the Hon’ble Commission which was accompanied by an affidavit from IFF’s Executive Director, Mr Apar Gupta. The statement detailed the structure of the NSO group, provided details regarding the functioning of the Pegasus Spyware and summarised the response of the Union Government to the revelations by the Pegasus Project. Subsequently, on the Hon’ble Commission’s direction, we supplemented our first statement with an additional affidavit which explained the procedure for authorising interception.

Impact: Based on our statements, the Hon’ble Commission invited Mr Apar Gupta to depose as a witness in November 2021. At the hearing, Mr Gupta made detailed submissions and responded to questions posed by the Hon’ble Commission based on supporting documents. We hope that our efforts have assisted the Hon’ble Commission in its inquiry.

Apart from the above, we also addressed legal notices/representations seeking - a) withdrawal of illegal internet shutdown orders; b) withdrawal of a Section 91 Code of Criminal Procedure, 1972 notice which violated right to privacy; c) cessation of illegal searches by the Hyderabad Police; d) cessation of use of AI and facial recognition technology to enforce COVID-19 lockdown; e) investigation of ‘Sulli Deals’ incident; f) publication of internet shutdown orders (Haryana,  Jammu and Kashmir and Meghalaya); and g) withdrawal of Delhi Governments order which prohibited any speech on the internet related to mucormycosis.

Challenges faced by us in 2021

We have continued to march forward in 2021 but the year wasn’t without its challenges. As a result of the COVID-19 pandemic, we could not work for almost a month as our entire team tested positive. We were compelled to work remotely which is difficult for litigation. But during that time we remained cognizant of the challenges to digital freedoms brought by the pandemic. As detailed above, we noticed the order of the Indore collector and promptly responded to it to protect speech on the internet. We also assisted Mr Rajshekhar Rao to ensure equitable access to vaccines. Remote working also provided us with the opportunity of legally assisting litigants in courts beyond the National Capital Territory of Delhi. We were able to file cases and obtain favourable orders in the Kerala High Court and the Madras High Court. We are presently close to filing matters in the Telangana High Court, Bombay High Court and the Rajasthan High Court.  Our expansion to other states has allowed us to address issues that are specific to certain jurisdictions and also to access a decentralised jurisprudence.

In 2021, we continued to find it difficult to get our cases listed. In the Supreme Court, we had preferred an application seeking compliance by states of the directions in Anuradha Bhasin vs Union of India, (2020) 3 SCC 637. We had also filed a petition on behalf of a litigant against the suspension of internet services in Jammu and Kashmir. Both these cases were not listed even once throughout the year.

In the Delhi High Court, we were more successful in instituting new cases. However, the cases we had filed before this year were not taken up for hearing. As a result, we could not get effective hearings in Mr Tanul Thakur’s challenge to Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 as well as Mr Saurav Das’s petition seeking more information on the development of Aarogya Setu application.

Looking towards next year

We are approaching the next year with a positive outlook. We understand that the new year will come with its challenges but we will use our learnings to respond to them. We also understand that in a world that is being digitised at a rapid pace, judicial intervention is necessary to defend individual rights over the internet, and thus we are performing an important function. However, the success of any court centred intervention often depends on public outreach, collaboration with experts, prior policy level engagement and information gathering through RTIs, and we hope to continue following this multi-pronged advocacy model going forward in 2022.

While we continue to work on our existing docket, we will work on other issues such as facial recognition technology, anti-competitive practices by Big Tech, government censorship on social media and non-compliance with the directions of the Supreme Court in Anuradha Bhasin vs Union of India, (2020) 3 SCC 637.

Apart from this, we look forward to your suggestions on what we can do better? Reach out to us by [filling in this form] and let us know what we should focus on in 2022, or let us know how we can make our existing work more effective.