Regulation of Intermediaries: Untangling the web of petitions and Understanding the Supreme Court’s latest directions to the Centre

Background of the Case

In August 2019, Facebook Inc. (“Facebook”) filed a petition before the Supreme Court of India (“Transfer Petition”) regarding the issue of traceability of users posting content on social media platforms. This case has come to be popularly known as the ‘Whatsapp traceability case’. Through its petition, Facebook sought a transfer of the following petitions that were being heard by the Madras High Court, Bombay High Court and Jabalpur High Court, to the Supreme Court (“SC”) i.e.

a.   Madras High Court- Two public interest litigations (PILs) were filed in 2018 by Antony Clement Rubin and Janani Krishnamurthy, respectively. In Antony’s petition, an order was sought mandating the linking of Aadhaar or any other Government authorized identity proof, for authenticating email or user accounts. The observations of the court in these proceedings have been discussed in our previous Bulletin Board post of September 24, 2019.

b.   Bombay High Court- A PIL was filed in October 2018, seeking to bring unregulated content on social media platforms within the ambit of Section 126 of the Representation of Peoples Act, 1951, so as to ensure that political lobbying does not take place 48 (forty-eight) hours prior to the conduct of elections.

c.    Jabalpur High Court- A writ petition was filed in July 2019, seeking an order directing the Central Government to issue guidelines to ensure that social media platforms allow an individual to open a user account only after he/she furnishes Know Your Customer (KYC) details.

What is the status of the transfer petition?

In the Transfer Petition, the Tamil Nadu Government opposed the transfer of the Madras High Court case, and Facebook responded that the objective of the transfer was to avoid potential conflict between the decisions of the Madras High Court and the Supreme Court, on common questions of law, i.e. legality and possibility of tracing users on the Internet. Further, Facebook contended that it would be beneficial for the SC to adjudicate on the matter, instead of a high court, to ensure that the decision involved a nationwide perspective of the issue. However, it should be noted that the SC has not yet decided upon the transfer of cases, though it has passed an order on August 20, 2019, stating that the hearing before the Madras High Court could continue but no ‘effective orders should be passed’ to avoid conflicting decisions.

What is the status of the High Court proceedings?

Currently, the Madras High Court continues to conduct hearings on the petition, subject to the SC’s order. On the other hand, the Bombay High Court, has issued notices to the respondents and finally, in the case before the Jabalpur High Court, notices are yet to be issued.

What has the Supreme Court observed in its September 24, 2019 Order?

On September 24, 2019, the SC passed an order requiring the Ministry of Electronics, Information and Technology (“MeitY”) to furnish an affidavit within 3 (three) weeks.

In this affidavit, MeitY will be required to provide information regarding the steps being taken by the Central Government to formulate intermediary guidelines for the resolution of various issues, such as spread of fake news, cyber bullying, and general traceability of anonymous users posting offensive or harmful content on social media platforms. The SC has also directed the Government to provide a time frame within which these guidelines will be deliberated upon and formulated.

In discussing the need for ‘Intermediary Guidelines’, the SC has observed that a balance has to be achieved between the privacy rights of an individual, the sovereignty of the State and the prevention of illegal activities within India. These observations are similar to those made by the Madras High Court in the petition filed by Antony Clement Rubin, although the Madras High Court has gone one step ahead and remarked that the individual’s right to privacy was not absolute and was subject to the maintenance of peace and law and order in society. Given that the SC has held that ‘no effective orders should be passed’ by the Madras High Court, it is unclear what value can be accorded to its remarks above.

Quick View

Madras High Court on Aadhaar linking

Since the original issue before the Madras High Court was that of linking Aadhaar with one’s social media account, the Madras High Court adopted a position based on the SC’s judgment in Justice K.S.Puttaswamy (Retd.) v. Union Of India (“Aadhaar case”). Accordingly, a prayer from the petitioner seeking such linkage was rejected on the ground that the SC has held that Aadhaar could only be mandatorily required for implementation of government schemes.

What is needed for the Supreme Court to reverse its position?

It will be interesting to examine whether the SC will veer away from its reasoning in the Aadhaar case, and allow linking of Aadhaar to one’s social media account. This would open up a further can of worms, as any such ruling would need to be made by a bench that is larger than the 9-judge bench that ruled on the Aadhaar case, for it to have any precedentiary value.

Lifting the veil of anonymity on the internet- Privacy concerns?

Enabling traceability of users on the Internet by establishing a link with the individual’s Aadhaar identity would definitely give rise to multiple privacy concerns. This is because the personal information available on Aadhaar’s database is of immense value and its misuse poses great risks. Even if one were to allow such tracing without an Aadhaar link, it would pose privacy and data protection concerns.

The only way to go about resolving such privacy and data protection concerns is for the Central Government to expedite the process of passing the Personal Data Protection Bill and for it to also frame the Intermediary Guidelines. Any determination of intermediary liability can only be made on the basis of existing data protection and privacy principles, which are currently quite inadequate.

Here, the SC appears to have taken a step in the right direction, by indicating that the issue of intermediary liability is a policy issue to be determined by the Central Government, and not one to be delved into by the courts. As it said, “it was the courts’ duty to question the legality of a policy but not to create one.”


Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.