The legal team at IFF has been working hard to address important digital rights issues, such as internet shutdowns, mandatory imposition of Aarogya Setu, illegal website blocking, unlawful spying and use of facial recognition technology. In 2020 and 2021, we brought these issues to the attention of Constitutional Courts. This year, we are seeing the fruits of our labour, with positive outcomes from cases filed in previous years and additional victories that have advanced the digital rights of every Indian. For example, Mr. Tanul Thakur's case against the illegal ban on his website was filed in 2019 and saw positive outcomes in 2022. Additionally, our sustained efforts have resulted in 5 more important victories this year, all of which we have summarised in this post below.
Clearly, litigation is a process that requires patience and sustained support over the years. If you believe in the efforts that we describe, please support us. Our members enable us to perform the important task of defending digital freedoms in courts. We are grateful to the litigants for trusting us with their cases and our network of collaborating lawyers who spent countless hours working pro bono.
2022 in numbers
2022: A year of victories
After two years of challenges caused by the COVID-19 pandemic, 2022 allowed us to work in-person for longer. This made it easier for us to increase our work volume, and our outputs improved, leading to important victories for digital rights. We have summarised six below:
The Supreme Court deleted reference to unconstitutional Section 66A in any ongoing prosecution across the country.
- Section 66A of the Information Technology Act criminalised speech that was "grossly offensive" and was used to suppress dissent. The Supreme Court struck it down in 2015, but state governments continued to use it in violation of the court's ruling.
- IFF’s response: In 2019, we developed the Zombie Tracker in collaboration with Civic Data Labs. The tracker used court records to show that more cases were filed under Section 66A after the Supreme Court struck it down in 2015 than before. In 2021, we presented this data to the Supreme Court through an application filed by PUCL, which urged the court to take action.
- Impact: In 2021, the Supreme Court directed the Union Government, States, Union Territories and High Courts to respond to PUCL's application, which prompted them to issue around 35 notifications (See Union Government’s notification). Many of these notifications directed police agencies to stop prosecuting under Section 66A. 10 states, one union territory, and 12 high courts also provided data in their replies to the application, which confirmed the findings of the Zombie Tracker. Later, on October 12, 2022, after hearing Senior Advocate Sanjay Parikh, who represented PUCL, the Supreme Court issued a range of directions, including the deletion of Section 66A in every case throughout the country.
Supreme Court ‘put in abeyance’ the draconian law of sedition.
- Section 124A of the Indian Penal Code is a colonial-era law that has been used against members of the opposition, civil rights activists, and freedom fighters. In recent years, its usage has increased, and it has been used to suppress criticism of the government on the internet.
- IFF’s response: We assisted the Journalist Union of Assam (JUA) in filing a petition in the Supreme Court challenging the constitutional validity of Section 124A. The petition argued that the law violates freedom of speech on the internet and disproportionately affects journalists who speak truth to power.
- Impact: In May 2022, the Supreme Court held extensive hearings on the legality of Section 124A and asked the Union Government for its stance. The Government stated that it was reconsidering the law and asked the Court not to intervene. After hearing from Senior Advocate C.U. Singh and other senior advocates, the Supreme Court put Section 124A in abeyance and directed the Union and State Governments to release individuals being prosecuted under the law and not to register any more FIRs.
Calcutta High Court directed the State of West Bengal not to suspend internet services after hearing our submissions.
- In March 2022, the West Bengal government ordered an internet shutdown in several districts to prevent cheating on a Class 10th examination. This shutdown affected thousands of people and particularly impacted gig workers, students, and journalists who relied on mobile internet.
- IFF’s response: We quickly filed a writ petition in the Calcutta High Court during the internet shutdown. Our lawyers worked late at night and then travelled to Calcutta to assist our arguing counsel. Within two days, we were able to draft, file, and present our submissions to the court.
- Impact: Our efforts were successful.The Calcutta High Court directed the State of West Bengal to lift its internet shutdown order and restrained it from shutting down the internet again for the same purpose. After a two-day hearing, the court concluded that the shutdown was issued without legal authority, without valid reasons, and less restrictive alternatives could have been used to prevent cheating on exams. The court's order provided immediate relief to residents in affected areas and can now be relied on to challenge internet shutdowns in other states.
In a first, the Delhi High Court directed the Ministry of Electronics and Information Technology to provide us with a copy of the order which banned the satirical website, www.dowrycalculator.com
- In 2011, journalist Tanul Thakur created the Dowry Calculator, a satirical website that criticized the dowry system. In 2018, the Ministry of Electronics and Information Technology (MeitY) blocked the website without providing Thakur with a hearing or a copy of the ban order. The website was reportedly blocked because, according to the Minister for Women and Child Development, it hurt India's reputation abroad. However, this is not a legally valid reason to restrict freedom of expression.
- IFF’s response: Tanul, with legal assistance from IFF, challenged the censorship before the Delhi High Court in November 2019. He argued that the censorship was illegal and asked the court to direct MeitY to restore his website. He also asked the court to declare that MeitY must share copies of blocking orders with content creators so that they can challenge government censorship.
- Impact: Although the website has not been restored, our of-counsels, Ms. Vrinda Bhandari and Mr. Abhinav Sekhri, were able to persuade the Delhi High Court to direct MeitY to provide us with a copy of the blocking order and grant Tanul a post-decisional hearing. This marks the first time MeitY has had to share its censorship orders, which is significant because we can now address issues with the order before the Delhi High Court. The Delhi High Court's order can be used in other proceedings where MeitY has not provided copies of blocking orders to content creators. According to reports, Twitter Inc. has relied on the order we obtained in its petition against the Union Government in the Karnataka High Court.
Successfully convinced MeitY to restore www.videolan.org, the official website for downloading VLC Media Player.
- In March 2021, MeitY directed the Department of Telecommunications (DoT) to ban www.videolan.org, the website where users in India can download VLC Media Player. The ban was imposed without providing VideoLAN prior notice or an opportunity to be heard. As a result, Indian residents could not download the media player from a verified source and had to use unofficial and potentially harmful sources. This was concerning because VLC Media Player is open-source software that promotes innovation.
- IFF’s response: VideoLan approached us for legal support to challenge the ban on their website. We first filed an RTI asking MeitY if it had censored the website. MeitY claimed that it had no information. We then sent a legal notice to MeiY pointing out that the ban was unlawful and asking for a copy of the blocking order and an opportunity for VideoLan to defend itself. MeitY partially accepted our request, granting a hearing before an inter-ministerial committee where Ms. Vrinda Bhandari represented VideoLan.
- Impact: In November 2022, MeitY agreed with our submissions and restored www.videolan.org. This is rare as MeitY never changes its decisions. This case has certainly helped VideoLan and has also improved our understanding of how to approach proceedings before MeitY.
Gauhati High Court permitted IFF to make submissions on the legality of rules which enable governments to suspend internet services.
- In response to protests against the Citizenship (Amendment) Act, 2019, the state of Assam suspended mobile internet services for a week in December 2019. Several people, including Mr. Ajit Bhuyan, approached the Gauhati High Court to challenge the legality of the suspension. Bhuyan also challenged the constitutionality of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 ('2017 Rules') in addition to the internet suspension in December 2019. While internet services resumed, the proceedings on the legality of the 2017 Rules continued.
- IFF’s response: In June 2020, we filed an intervention application in Mr Bhuyan's proceedings to assist the Gauhati High Court in determining the constitutionality of the 2017 Rules because of our experience in litigating internet shutdown-related issues.
- IMPACT: The application was listed for hearing on January 31, 2022. Ms. Gayatri Goswami appeared on our behalf and informed the court about IFF's work on internet shutdowns. She also said that the court would benefit from IFF's presence in the proceedings. The court agreed and permitted IFF to intervene. The case is pending, and we are committed to assisting the court as it considers the legality of the 2017 Rules, which are still being abused.
2022: Expanding our docket, exploring new frontiers and learning from setbacks.
In 2021, we promised to raise more digital rights-related issues, especially outside of Delhi. We delivered on that promise in 2022. We continued our work on internet shutdowns, obtaining a victory in West Bengal and instituting proceedings against specific internet shutdown orders in the Rajasthan High Court and Gauhati High Court..
In May 2022, the court directed the Government of Rajasthan to show cause after hearing our submissions on the frequent suspension of internet services in the state. In Assam, we assisted a social activist in challenging a specific internet shutdown issued to prevent cheating on exams in August 2022. As a result of the petition, the government did not shut down the internet during exams in September 2022.
In October 2022, the Supreme Court issued notice in a petition we had filed on behalf of the Jammu and Kashmir Private School Association. In the petition, we highlighted how the government of Jammu and Kashmir suspended internet services without complying with the Supreme Court's directions in Anuradha Bhasin v. Union of India. This is an important case that could provide relief to residents of Jammu and Kashmir, who continue to be affected by frequent internet shutdowns till date.
Outside of internet shutdowns, and as promised, we have now raised other digital rights issues before Constitutional Courts.
As promised, we have now raised other digital rights issues, outside of internet shutdowns, before Constitutional Courts:
- Search and seizure of mobile devices: We assisted the Foundation for Media Professionals (FMP) in filing a petition before the Supreme Court seeking guidelines on the powers of the police to search electronic devices. In October 2022, the Supreme Court issued notice in the petition. Our members had expressed concern about arbitrary police searches of mobile devices. We believe the Supreme Court can address these concerns in the proceedings that FMP has initiated.
- Use of Facial Recognition Technology (‘FRT’) by law enforcement agencies: Mr. S.Q. Masood, a social activist based in Telangana, approached IFF after police officers took his picture without cause. We assisted him in filing a petition before the Telangana High Court challenging the use of FRT by the police without a law to prevent the abuse of this invasive technology. In January 2022, after hearing submissions from Mr. Manoj Reddy, who represented Mr. Masood, the Telangana High Court issued notice in the petition. We have received a reply from the government and have filed our response. We will share copies of these documents before the next hearing.
- Questioned CERT-IN’s directions which require every service provider, including VPN services, to surveil their users: On April 28, 2022, the Indian Computer Emergency Response Team (CERT-In) issued Directions mandating service providers on the internet to - 1) maintain logs of activities of their users; and 2) onboard users only after conducting a Know Your Customer (‘KYC’). In September 2022, we assisted SnTHostings in filing a petition before the Delhi High Court challenging the legality of these directions. We have pointed out how these directions violate the right to privacy as it compels a range of entities to collect personal information of its users and then share it with CERT-In on demand. The Delhi High Court issued notice in the petition and directed the Union Government to reply. We have now received a reply, and we are preparing a response.
Apart from these new cases, we have continued to work on our existing docket. Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021), which subjected digital news media to government oversight, remains stayed. We obtained important orders last year from the Kerala High Court and the Madras High Court. We defended those orders before the Supreme Court, which decided not to vacate them despite the government's submissions. We have also continued to represent victims of the Pegasus spyware in proceedings before the Supreme Court. The committee the Court established last year has now submitted its report, and we are working to make it available.
At the same time, everything has not been perfect. We have faced setbacks. We were unable to persuade the Karnataka High Court to permit Mr. Aakar Patel, a human rights activist and a Twitter user whose account was blocked by the Union Government, to intervene in proceedings where Twitter has challenged blocking orders issued by the Union Government. We believed that it was important for users to be represented in these proceedings as it pertains to whether the Union Government grants a hearing to users before blocking their Twitter accounts.
We have learnt from these setbacks. They have motivated us to keep improving the quality of our work to enhance digital rights in India.
Looking forward to 2023
We are looking forward to 2023, as many of the cases we have instituted in the past two years could reach finality next year. We will also continue to bring new cases. We are currently exploring a new challenge to the use of FRT by law enforcement agencies, examining whether we should approach courts for copies of the review committee's findings and preparing a challenge to the Criminal Procedure Identification Act, 2022. We look forward to raising these issues in court and through other advocacy efforts. We continue to believe that the success of court-centred interventions often depends on collaborative frameworks of public outreach, collaboration with experts, prior policy engagement, and information gathering through RTIs, and we hope to continue following this multi-pronged advocacy model in 2023.
We look forward to using our learnings from 2022 to respond to the challenges that the new year brings. We also understand that in a world that is being digitized at a rapid pace and judicial intervention is necessary to defend individual rights over the internet. Thus, we look forward to your suggestions on what we can do better? Reach out to us at [email protected] and let us know what we should focus on in 2023, or let us know how we can make our existing work more effective.