- Background: Facebook had filed a Transfer Petition before the Supreme Court seeking transfer of Antony Clement Rubin v. Union of India from the Madras High Court to the Supreme Court because there were multiple cases pending before different High Courts which involved the common question of whether social media accounts should be linked with Aadhar. However, the Madras High Court has clarified that it is no longer considering Aadhar linkage and its focus is on facilitating cooperation between the police and social media platforms to find the originator of unlawful content.
- Policy making is the job of the executive: The Supreme Court emphasized that the Government was best suited to formulate policies about technical and complex issues such as encryption. The next date of hearing is 22 October and the Secretary of MeitY has been directed to file an affidavit about the status of the Draft Intermediaries Guidelines Rules.
Importance of Access to Justice
In today's hearing before the Supreme Court in Facebook's transfer petition seeking transfer of Antony Clement Rubin v. Union of India from the Madras High Court to the Supreme Court, extensive arguments were made by the parties on whether technical and complex issues involving encryption should be addressed by the judiciary.
On 23.09.2019, IFF filed its response to Facebook's transfer petition and reiterated that while it believes such problems should be addressed by the legislative and executive branches of government, the Supreme Court should not curtail the jurisdiction of High Courts to entertain writ petitions by ordinary Indian internet users against large multinational tech companies. Ordinary Indian internet users residing in different parts of the country should be allowed to approach their State High Courts if their fundamental rights are violated by Big Tech because most Indians do not have the resources to initiate litigation in the Supreme Court. While we believe that the prayers in Antony Clement Rubin v. Union of India are misguided and strongly oppose any attempts to weaken encryption, it is also important to preserve access to justice for aggrieved citizens.
Supreme Court Proceedings
During today's hearing, the bench once again inquired about the status of the Draft Intermediaries Guidelines Rules which have been in the pipeline since December 2018. The Counsel for the Central Government clarified that the policy formulation process was underway and "special suggestions" were being sought to revise the Rules. However, he stated that a specific timeline for notification of the Rules could not be provided. The Bench comprising of Deepak Gupta J. and Aniruddha Bose J. noted that while misuse of technology is a serious concern, such technical and complex issues are best addressed by the executive branch.
The Counsel for the State of Tamil Nadu insisted that WhatsApp was trying to avoid complying with Indian law by stating that it does not have the technology to identify the originator of information on its platform but this was not true since Dr. Kamakoti who is a Professor at IIT Madras had provided a technical solution to enable tracing of originator. In response, Senior Advocate Mr. Kapil Sibal appearing for WhatsApp stated that another IIT Professor had disagreed with Dr. Kamakoti's proposed solution. This was a reference to the expert report by Dr. Manoj Prabhakaran from IIT Bombay that IFF had previously filed before the Madras High Court. Read more about it here.
After hearing these submissions, the Court noted that such complex issues need to be decided in consultation with technical experts and the judiciary cannot be expected to implement such changes. The Court emphasized that while policy formulation was within the domain of the executive, any policy formulated by the government is subject to judicial scrutiny to ensure that it does not undermine the right to privacy. Since the Draft Intermediaries Guidelines Rules are being actively considered by the Government, the Court adjourned the matter till 22.10.2019. It further directed the Solicitor General to file an affidavit by the Secretary of MeitY within 3 weeks about the status of the Rules and provide a definite timeline about when the process will be completed.
IFF's Stance Explained
IFF's Executive Director, Mr. Apar Gupta said the following about IFF's stance in today's hearing:
"IFF represents Indian internet users and their fundamental rights, and not Big Tech. This requires us to take principled positions on what’s the best outcome possible in tough and complex situations.
Ordinary internet users should have the ability to approach local judicial forums against Big Tech and will lack the financial capacity and resources to travel from remote places in India to judicial forums such as the Supreme Court of India at New Delhi. This is separate from our substantive position which we have explained and our stance has been taken after considerable deliberation and inputs from our external team of lawyers.
Just like we have filed a technical submission opposing traceability in the Hon'ble Madras High Court, we also opposed the transfer petition after receiving legal advice. According to us, it is best to contest the demand for traceability or social media regulations before the Hon'ble High Court. The High Court judgement will of course be subject to appeal if parties are aggrieved and the transfer petition is dismissed.
Ultimately foregrounding all of this is our defense of the standards of the Shreya Singhal judgement. This is why we recommend that such complex questions that rest on technical aspects of computer science should be settled by executive and legislative processes rather than through courts. Any such legislative changes or regulations are also similarly open to judicial challenge if they undermine fundamental rights."
The next hearing in the transfer petition is on 22 October 2019 and we will keep you updated about how this important case progresses. IFF was represented in today's hearing by Udayaditya Banerjee, Ria Singh Sawhney and S. Prasanna, and we are extremely grateful for their continued support.