IFF’s Litigation Team has been working tirelessly to address important digital rights issues, such as internet shutdowns, mandatory imposition of Aarogya Setu, illegal website blocking, search and seizure of digital devices, unlawful surveillance and spying, and use of facial recognition technology. In 2021 and 2022, we brought these issues to the attention of Constitutional Courts. In 2023, in the face of wins and losses, we trudged on!
The present year showed us that if you keep on keeping on, your efforts are bound to bear fruits, with favorable developments arising from legal cases initiated in preceding years and further triumphs that have promoted the digital rights of all Indians. A notable instance is the legal challenge of Mr. Tanul Thakur against the unlawful ban on his website, which was initiated in 2019 and witnessed positive outcomes in 2023. Another instance would be the Supreme Court directing the Union Government to ensure adherence to the procedures surrounding the search and seizure of digital devices outlined in the CBI Manual. Additionally, our sustained efforts have resulted in other important victories this year, all of which we have summarised in this post below.
Litigation truly is a “tareek pe tareek” process that calls for persistence over time and patience. Some days we have wins, other days we return to the office at the end of a long day with sadness on our faces but a zeal to fight back harder in our hearts. If you believe in the efforts that we describe, please do support us, if you can. Our work is collaborative, and we are only able to carry out the crucial duty of protecting digital liberties in Courts because of our network of likeminded and brilliant lawyers who put in many hours of pro bono work, as well as the litigants who trust us with the cause and their cases, and most importantly, because of you, our members, who give us the energy to continue.
2023 in numbers
2023: A Triumph-Filled Year
In 2023, the Litigation Team at the Internet Freedom Foundation celebrated a year filled with important victories. Let’s get into it below:
Supreme Court directed WhatsApp to allow users to continue using WhatsApp without accepting its 2021 Privacy Policy
- WhatsApp’s 2016 Privacy Policy has been the subject of a long-standing Court challenge before the Delhi High Court, then the Supreme Court, and now a 5-Judge Bench of the Supreme Court. WhatsApp has since updated this policy in 2021, forcing users to accept its revised privacy policy or stop using its service entirely, which is also the subject of challenge in the present proceedings.
- IFF’s Response: The changes to WhatsApp’s Privacy Policy in 2016, and then in 2021, became the subject of pending litigation before the Supreme Court in Karmanya Singh Sareen v. Union of India, where IFF was an Intervenor. We filed an application for interim directions and stay of the 2021 Privacy Policy. We further advanced arguments about the need to preserve the privacy of metadata even if the actual content of messages is encrypted.
- Impact: Upon insistence by the Counsel appearing on behalf of the Internet Freedom Foundation, the Supreme Court ordered that in the interim, WhatsApp must publicize that users of WhatsApp who have not yet accepted the Privacy Policy update of 2021, may continue to use WhatsApp without fear of their accounts being deleted.
Delhi HC issued notice on a writ petition seeking information on the extent of e-surveillance carried out by Ministry of Home Affairs under Section 69 of IT Act
- Section 69 of the Information Technology Act, 2000, allows the government to intercept, monitor, and decrypt any information generated, transmitted, received, or stored in any computer resource. This grants the Central Government the power to conduct an all-around e-surveillance on citizens, even decrypting encrypted data on their devices.
- IFF’s Response: Despite filing six RTI applications seeking data on e-surveillance orders issued in 2018 under Section 69 of the IT Act, the Ministry of Home Affairs (MHA) has consistently denied the information. On 28.03.2022, IFF filed a writ petition challenging the CIC Order on grounds such as the MHA's custodianship of sought information, inconsistent positions by MHA officers, the necessity to preserve data during ongoing RTI proceedings, and past provision of similar information by the MHA in response to RTI requests.
- Impact: The persistent pursuit of transparency and accountability in e-surveillance practices by IFF bore fruits and the Delhi High Court directed MHA to clarify its position on the maintenance of e-surveillance data and was pleased to issue notice.
Ministry of Information and Broadcasting furnishes list of digital news media publishers and OTT platforms that submitted their details under IT Rules, 2021
- IFF filed RTI applications with the Ministry of Information & Broadcasting (MIB) seeking information on notices sent to news media publishers under Rule 18 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021). While MIB initially disclosed that 2100 publishers provided their details under Rule 18, they refused to share further information, including the number of notices issued or their legal basis, despite a stay on Rules 9(1) & 9(3) of the IT Rules, 2021 by the Madras and Bombay High Courts. Even after a first appeal, MIB declined to provide the list of publishers, citing a "fiduciary relationship" with them.
- IFF’s Response: Dissatisfied with the response, we filed a Second Appeal with the Central Information Commission (CIC) on May 6, 2022. The CIC heard our Second Appeal on March 2, 2023, and held that the invocation of the fiduciary capacity under Section 8(1)(e) of the RTI Act by the CPIO was “grossly misplaced”.
- Impact: In response to CIC’s order, the MIB has furnished a list of 3,101 digital news media publishers and 57 OTT platforms. The disclosure of this information plays a crucial role in fostering and promoting greater transparency and accountability.
Supreme Court refers challenge to the constitutionality of sedition law to a larger Bench of at least 5 judges
- Section 124-A 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 124-A. The petition argued that the law violates freedom of speech on the internet and disproportionately affects journalists who speak truth to power. The Supreme Court held extensive hearings on the legality of Section 124-A.
- Impact: On September 12, 2023, a 3-Judge Bench of the Supreme Court led by the CJI held that as the challenge to the constitutionality of Section 124-A IPC required reviewing the 1962 judgement of a 5-Judge Bench in Kedar Nath Singh v. State of Bihar, it would not be appropriate for a smaller Bench to do the same. This decision came after a discussion on Kedar Nath Singh where the Court observed that the said judgement had only examined Section 124-A from the perspective of Article 19, and not Articles 14 and 21 of the Constitution. The matter will now be placed before the CJI on the administrative side for the formation of a Bench of at least 5-Judges. We will be present and will continue to fight towards having Section 124-A of the IPC completely struck down, and our free speech preserved.
Union Government assures the SC that the procedure in CBI Manual will be followed in Search and Seizure of Digital Devices before Guidelines are formalised
- In recent years, there has been a noticeable increase in incidents ofthe raids being conducted where there is a discernible overreach in powers of search and seizure. There have also been cases where the police stopped individuals on the street and compelled them to surrender their phones. Additionally, law enforcement has been leveraging WhatsApp conversations of those they apprehend to justify their detention. Frequently, these chats are unrelated to the alleged offence, and they sometimes even find their way into the hands of media organizations. This situation is of particular concern for journalists who heavily rely on digital devices for collaboration with sources and whistleblowers.
- IFF’s Response: In the wake of this issue, the Foundation for Media Professionals, with legal assistance from IFF, approached the Supreme Court seeking a resolution for laying down guidelines concerning law enforcement's authority to search or confiscate electronic devices. The petition underscored the absence of clear legal guidelines governing the process of electronic device searches and seizures.
- Impact: After several extensive hearings, the Union of India on December 14, 2023, submitted to the Court that discussions had been held and that they would come up with something within 6 weeks. Further, the Union Government assured the Supreme Court that Union agencies will duly follow the procedures laid down in the 2020 CBI (Crime) Manual on Digital Evidence till final guidelines on the search and seizure of digital devices were formalized.
2023: Forging ahead into new frontiers and absorbing lessons from setbacks
At the forefront of digital advocacy, we at the Internet Freedom Foundation (IFF) have consistently raised crucial digital rights issues before Constitutional Courts. From matters of online privacy and freedom of expression to challenges in navigating the evolving digital landscape, our efforts aim to safeguard fundamental rights in the digital realm. By engaging with Constitutional Courts, we strive to address and redress key issues, contributing to the ongoing discourse on the intersection of technology and individual liberties. Some of the digital rights issues raised by us before Constitutional Courts are:
- Use of Facial Recognition Technology (‘FRT’) by law enforcement agencies: Concerned with the rampant, unbridled, and clandestine use of FRT by the State of Tamil Nadu, and the absence of any procedural safeguards, Mr. Kandasamy, with legal support from IFF, has filed a petition in public interest on behalf of residents of Tamil Nadu. Through the petition, Mr. Kandasamy argued that the deployment of FRT in Tamil Nadu is in flagrant violation of citizens’ fundamental rights, specifically contravening Articles 14, 19, and 21 of the Constitution. The Madras High Court has issued notice to the State. Notice was accepted by the Counsel appearing on behalf of the State of Tamil Nadu.
- Mandatory imposition of Aarogya Setu app: Mr. Saurav Das, a Right to Information (‘RTI’) activist and independent journalist, submitted a series of RTIs to unearth information about Aarogya Setu app’s genesis. Since its launch during the initial wave of COVID-19, Aarogya Setu has faced significant criticism, from lack of transparency to concerns related to privacy, security, and potential misuse. However, frustrated by the absence of any response, he escalated the matter by lodging a complaint with the Central Information Commission (‘CIC’), which yielded no results. Aggrieved with the CIC’s decision, Mr. Das, with legal assistance from IFF, filed a writ petition before the Delhi High Court. The Delhi High Court on September 15, 2023, directed the Union Government to confirm the absence of comprehensive written records related to the app’s development.
- Challenging the Union Government’s fact-checkingcontact amendments: Pursuant to the completion of rejoinder submissions by the counsels for the Petitioners assisted by IFF, in a batch of petitions filed by Association of Indian Magazines, Kunal Kamra and others, challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (‘IT Amendment Rules, 2023’) dated April 6, 2023, the Bombay High Court reserved the matter for judgment, which will now be pronounced on January 5, 2024.
- Challenging the Criminal Procedure (Identification) Act, 2022 and Rules: In collaboration with the Criminal Justice and Police Accountability Project (CPAP), IFF has filed a petition before the Supreme Court challenging the constitutionality of the CPI Act and Rules which bestow excessive powers to the police to indiscriminately collect a variety of measurements, ranging from fingerprints to biological samples, from any person who remotely comes into contact with the criminal justice system. The Act and the Rules further indulge in excessive delegation of powers and do not provide any safeguards for the collection of such measurements.
Furthermore, the Defamation Suit involving the contentious two-part BBC documentary titled, “India: The Modi Question” was heard by Rohini District Court to consider whether it has the jurisdiction to hear the same. The suit prayed for a permanent injunction against BBC, Internet Archive, and other Defendants to cease the publishing of the documentary, and for the passing of a decree of Rs. 10,00,000/- in his favor. IFF represented and provided legal support to Internet Archive in the matter.
At the same time, everything has not been perfect. We have faced setbacks, but c’est la vie, right?
In December 2022, freelance journalist P. Vaishnavi challenged a High Court of Madras order before the Supreme Court in which the HC had directed the trial court to retain all content and data from her mobile phone without specifying any safeguards. The petition argued that the absence of safeguards concerning storage and sharing of data, compromises individual constitutional rights, particularly the right to privacy and protection against self-incrimination. Regrettably, on February 12, 2023, the Supreme Court declined to issue notice in the petition and subsequently dismissed it.
There is also the case where journalist Tanul Thakur's satirical website, Dowry Calculator, was initially blocked by the Ministry of Electronics and Information Technology (MeitY) without a hearing or providing a copy of the blocking order. A challenge before the Delhi High Court led to directions being given to MeitY to provide Mr. Thakur with the blocking order as well as a post-decisional hearing. However, MeitY continued to block the website, Mr. Thakur was advised by IFF to file a fresh writ petition challenging this decision, which he did. HC asked for the Inter-Ministerial Committee's report rejecting the proposal to unblock "Dowry Calculator" to be made public and consider unblocking the website contingent on the disclaimer. However the same was rejected by the respondent. But, we continue to persist. As of now, Delhi HC directed the Union of India to File the report in a Sealed Cover.
Lastly, despite the Supreme Court's directions in the January 2020 judgment of Anuradha Bhasin v. Union of India, State Governments have continued their enforcement of illegal internet shutdowns. To ensure compliance with these directions, the Foundation for Media Professionals, one of the original Petitioners in Anuradha Bhasin, with the assistance of the IFF Litigation Team filed a miscellaneous application before the Supreme Court. Unfortunately, the Court was not inclined to hear the matter. Consequently, the Miscellaneous Application was dismissed as withdrawn.
What is life without any downs? We have learned from these setbacks. They have motivated us to keep improving the quality of our work to enhance digital rights in India, and in 2024, we will be back - the same, but improved.
Looking forward to 2024
We are looking forward to 2024, 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 look forward to raising these issues in court and through other advocacy efforts. We hope to keep using this multi-pronged advocacy model in 2024 because we continue to believe that the effectiveness of court-centered interventions frequently depends on collaborative frameworks of public outreach, expert collaboration, prior policy engagement, and information gathering through RTIs.
Building upon the lessons of 2023, we aim to address the challenges of the new year with a comprehensive and adaptive approach. We also understand that in a world that is being digitized at a rapid pace, 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 2024, or let us know how we can make our existing work more effective!