Twitter loses Immunity under IT Rules, 2021

The Ministry of Electronics and Information Technology, Government of India filed an affidavit in the High Court of Delhi stating that Twitter hasn’t complied with the regulations under IT Rules, 2021 and would thereby lose the conditional immunity given under it.The Government implemented the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules 2021 on 25th February 2021 in the Official Gazette of India. Under the new rules all Significant Social Media Intermediary (SSMI) have to comply with the provisions of the IT Rules 2021.

According to the new Rules, all the SSMIs would not be liable for anything published on their platform unless they ‘initiate the transmission,’ or ‘select the receiver of the transmission,’ or ‘modify the information contained in the transmission’. Section 79 of IT Act states, “An intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”. This is subject to conditions listed under Section 79(2) and Section 79(3) of the IT Rules.Rule 3 provides for various due diligence obligations to be followed by all intermediaries to avail exemptions from liabilities mandated under section 79(1) of the Information Technology Act, 2000. Rule 4 provides for additional due diligence to be complied with by SSMIs.According to the Ministry, Twitter qualifies as an intermediary and an SSMI under Section 2(1)(w) of the IT Act 2000 and IT Rules, 2021 respectively. Thus, it was obligated to comply with the additional due diligence set out under Rule 4 of the IT Rules, 2021. A time period of 3 months was given to the SSMIs to comply with the IT Rules, 2021 which are mandatory.Under Rule 4, the SSMIs are mandated to appoint a Chief Compliance Officer, Nodal Contact Person, Resident Grievance Officer for various purposes, all of whom have to be resident of India.Under Rule 7, the provisions of section 79 (1) will not be available to the the intermediary if it fails to observe these Rules and it shall be liable for any punishment in respect of the offending content.

According to the Ministry, Twitter has failed to comply with the IT Rules, 2021 as on 1st July, 2021 for the following reasons:a. Chief Compliance Officer has not been appointed;b. The position of the Resident Grievance Officer is vacant;c. The position of Nodal Contact Person, (even on an interim basis), is vacant.d. The physical contact address, which was shown to be there on 29th May, 2021 is once not again available on Twitter’s website.Thus, the Ministry stripped Twitter of the Safe Harbour Immunity (Section 79) for non-compliance with the IT Rules, 2021.

Right of private defense of property

Acts against which right ofdefenceof property can be exercised.• Every person has right to defend his or other’s property whether it is movable or immovable➢ Against theft, robbery, mischief or criminal trespass, or any act which is an attempt to commit theft, robbery, mischief or criminal trespass.➢ Against the act of a luncatic, a minor, or an intoxicated person, or a person acting under a misconception of fact (Section 97-98)B. Acts against which there is no right of private defense of property This act is including in section 99 to lay down the limitation to the right of private defence of property. There are two acts against which the right of private defence of property cannot exercise.➢ There is no right of private defense if act done in good faith and public servant acting in good faith.➢ There is no right of private defense of property in cases in which there is time to have recourse to the protection of the public authorities.Section 99 provide private defense in no case extends to the infliction of more than it is necessary to inflict for the purpose of defense.C. Right when commences and how long it continues (Section 105)Under section 105 the right commences when a reasonable apphrension of danger to the proeperty commences:▪ Against theft▪ Against robbery▪ Against criminal trespass or mischief▪ Against house breaking by nightSection 102 and 105 indicate that the right of private defense of the body or property commences and continues as long as the danger lasts.D. Subject to the restrictions contained in section 99, the right extend to the causing of death or any other harm to the offender in the following cases –▪ In case of robbery▪ House breaking by night▪ Mischief by fire to any building, tent or vessel, used as human dwelling or as a place for the custody of property.

HC GRANTS PROTECTION TO LIVE-IN COUPLE

“Punjab and Haryana High Court has held in a petition submitted under Article 226/227 ofthe Constitution of India gave directions to respondent to protect their lives and liberty fromany danger at the hands of the respondents.”

A single bench of Justice Arun Kumjar Tyagi while hearing the present criminal writ petition passed the order for protection of the live-in couple. The present petition is presented by PushpaDevi and Another under Article 226/227 [Power of the High Court to issue certain writs] of the Constitution of India. The case involved a woman aged 21 years and a man aged 19 years, who are living together as a live-in couple. The petitioner has pleaded for protection and asked for issuance of directions torespondents in respect to protect their life and liberty against therespondents.In the present case both woman and man have attained the legal age of majority which is 18 years in India, however the boy hasnot attained the legal age of marriage applicable to the couple inIndia. The legal marriage age according to the Hindu Marriage Act and Special Marriage Act is 18 years for girls and 21 years for Boys.The petitioners have also contended that after the boy attains the legal age of marriage they will tie knot and will legally solemnize. Also, as they are major they can act according to themselves without the interference of anybody including theirfamily and friends. The petitions also contended that the respondents are forcibly making girls i.e. petitioner no. 1, marry another man against her will and choice. They have also threatened to kill both the petitioners for the sake of family’spride and prestige.Against such actions, on July 2, 2021, the petitioners made arepresentation to the Senior Superintendent of Police, MohaliDistrict requesting the protection. They were seeking theprotection against the threats made by the respondents, however no actions were taken on their side so far. Therefore, the petitioners approached the Hon’ble court to direct the respondents for issuance of the protection of lives and liberty of the petitioners.

The court after hearing the claims held that the petitioner being major according to the law of land, therefore can have a live-in relationship and are also entitled to the protection against anyharm by the respondents.The Court sent the copy of the order and petition to the Superintendent of Mohali District for the compliance. It also directed the respondent no. 2, the superintendent to look into the grievance of the petitioner and to take appropriate action for the protection of their lives and liberty as may be warranted by the circumstances.

DISPARITIES IN THE RIGHT TO INFORMATION ACT 2005 OVER THE YEARS

The Right to Information is a fundamental right under Article 19(1)(a) of the Constitution of India, 1950 as recognised by the Supreme Court of India in various judgements since 1975. One such judgment is Union of India v. Association for Democratic Reforms (2002), in which the Supreme Court of India held that the citizens have a right to know about public functionaries and candidates for office, which is a right derived from the constitutional right to freedom of speech and expression, i.e., Article 19(1)(a).

The Government of India further extended the power of this right by enacting the Right to Information Act 2005 (RTI Act) in June 2005. This Act empowers the citizens of India to secure access to the information which is under the control of public authorities. This act fundamentally aims to promote transparency and accountability in the working of the public authorities and other related authorities. However, there are exceptions and restrictions to this right under Sections 8, 9 and 11 of the RTI Act. 

Section 8 of the Act fundamentally provides that there is no obligation to provide information which may affect the safety, security, and sovereignty of the State, which is forbidden by courts to disclose, may breach Parliamentary (Central and State) privilege, is related to trade secrets, is in the process of investigation, is under foreign confidence, etc. 

Section 9 provides that Information Officers can reject a request for information if such request has a possibility of leading to a copyright infringement of persons in another country. 

Section 11 lays down the process and conditions for sharing the third party data. 

These exceptions have been used by the Indian courts at various instances to deny information to the citizens. In the case of Chief Information Commissioner v. High Court of Gujarat (2020) the Supreme Court of India dismissed the appeal stating that the according to the Gujarat High Court Rules, stipulating a third party to have access to the information of the certified copies of the documents or orders requires the filing of an application stating the reasons for seeking such information. Although the verdict is not inconsistent with the provisions of the RTI Act, it lays down a different procedure  for the practice or payment of fees, etc. for obtaining information. 

The case further states that, in the absence of inherent inconsistency between the provisions of the RTI Act and other law, overriding effect of RTI Act would not apply and to access the information of the certified copies on the judicial side, the mechanism provided under the High Court Rules needs to be followed. Therefore, the provisions of the RTI Act seem to become weak.

Apart from denying information to the citizens by applying Sections 8 and 9 of the RTI Act, the appeal system for exercising RTI seems to be distorted. In the case of an appellant named R. B. Patil, his second appeal was rejected on relying on court orders, one of which was given by Calcutta High Court in Metropolitan Cooperative Housing Society Ltd.& anr Petitioners v/s The State Information Commission & Ors wherein the second appeal was not allowed since the order in the first appeal was in favour of the applicant. 

R. B. Patil received an order in his favour by the First Appellate Authority (FAA), but he did not receive any information. Therefore, he filed a second appeal. However, relying on the above-mentioned order, the Brihanmumbai bench of the Maharashtra State Information Commission (MSIC) rejected the second appeal. 

This dismissal of the second appeal is nothing less than denying information in the first place. The bench was following the court orders but while doing so the main purpose of RTI Act  was forgotten. Therefore, the Courts and the Government must provide a solution or a mechanism to accommodate the instances when citizens do not receive adequate information despite an order given in their favour by the Information Commission or the First Appellate Authority. It is important to remove these disparities in order to grant the right vested in citizens through the RTI Act and the Constitution. 

FAILURE OF LEGAL SANCTIONS TO PREVENT FAKE NEWS AMID COVID’19

Fake news has become the ‘New Normal’ in today’s time especially via social media. Inaccurate and fake news circulated on various social media platforms such as Facebook, WhatsApp, Twitter, and Instagram amid the COVID-19 pandemic has not only caused panic among the public but has also threatened the safety, security, and health of the public at large and has negatively impacted the economy. 

Addressing this “Second Pandemic” a name given by Red Cross President- Francesco Rocca, the representatives of media organisation from BRICS i.e., Brazil, Russia, India, China, and South Africa on 30^th November 2020 came together to work jointly to combat the virus of misinformation during the global pandemic. The virtually held meeting included discussions by media organisations on how journalists could collaborate more closely to tell stories with countries facing such challenges.

In the present day, fake news about Covid-19, its vaccine, its effects, its prevention methods, etc. are being circulated for various reasons and this is misleading the public who are unaware of its authenticity which is ultimately leading to a crisis in the entire society. The circulation and creation of inaccurate and fake news is prevalent since before, its drastic negative effects resulted in the formation of various rules, regulations and amendments in various legislations in India. 

For instance, Section 66D of the Information Technology Act gives punishment for cheating by personation by using computer resources and Section 54 of the Disaster Management Act states the punishment for spreading false warning regarding disasters. 

Further, the Indian Penal Code has various provisions as well, Section 505(1) of Indian Penal Code, 1860 punishes whoever publishes or circulates any statement, rumour or report which may cause fear or an alarm to the public; Section 153 of the Code criminalises the act of wantonly giving provocation with intent to cause riot; Section 499 and 500 of the Code provide for defamation and punishment for defamation respectively. However, these provisions are usually under the ambit of the fundamental right to speech and expression provided under Article 19(1) (a) of the Indian Constitution which states that all citizens shall have the right to freedom of speech and expression. The existing legal sanctions are therefore invokable only in case adverse consequences, violence, breach of peace, riots, etc. as stated by the Delhi High Court in Vinod Dua v. State (Govt. of NCT of Delhi) dated 10^th June 2020.

However, this neglects the misinformation caused silently and negligently by people through homes or workplaces. This does not have immediate drastic effects but leads to major mental distress. For instances, any fake news related to the Covid-19 vaccine, or spread, deaths, etc. may not cause any protests or physical violence but it has the potential of affecting people’s minds, mental health and even the economy as a whole, i.e. fall in the share market, fall in the real estate prices, unemployment, shortage of supply of basic amenities due to sudden increase in demand, etc. 

Hence, to safeguard the public and to fight against the spread of false information or misinformation, apart from the laws, awareness is the key. As commonly suggested, measures like promotion of relevant and accurate media exchanges, rigorous fact-checking, an investigation by well-trained journalists, etc. could be an initiative to curb the spread of misinformation, as even suggested by Mr. N. Ram, Director of The Hindu. Additionally, new fact-checking organizations supplemented by technological solutions and deployment of technologies such as AI can also help in achieving the desired results. 

FREE VACCINE PROMISE NOT A VIOLATION OF MODEL CODE OF CONDUCT

Pursuant to a direction of the Hon’ble Supreme Court, the ECI in 2013 framed certain guidelines for election manifestos of political parties. These guidelines were incorporated as Part VIII of the Model Code of Conduct and they are applicable from the date a political party issues its manifesto.

Firstly, as per the guidelines the manifesto shall not contain anything repugnant to the ideals and principles enshrined in the Constitution and shall be consistent with the letter and spirit of other provisions of Model Code.

Secondly, in light of the Directive Principles of State Policy enshrined in the Constitution that enjoin upon the State to frame various welfare measures there can be no objection to the promise of such welfare in the election manifesto. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.

Lastly, in interest of transparency, level playing field and credibility of promises, it is expected that manifesto also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirement for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.

Advocate Saket Gokhale filed a petition on 22^nd October before the Election commission of India requiring the commission’s attention towards the comment made by the Bharatiya Janata Party’s leaders which promised free Covid-19 Vaccine to all the people of Bihar. 

The petition highlighted that the statement was not made by the leaders of BJP polling in Bihar but by the Union Minister of Finance Smt. Nirmala Sitharaman, which was objectionable and misleading. Secondly, the petition objected to the action of posting the comment via twitter from the official BJP handle.

The main ground of the petition was that the statement made by the political party is in ignorance of the Model Code of Conduct and of Article 14 of the Constitution of India since each and every state and every individual therein is equally entitled to access the vaccine. The petition stated that in the absence of any official policy by the Union government, such promises are baseless.  

Whereas, the political party’s reply to it stated that, since public health being a state subject the state governments can decide the course of action and hence make promises for the same.  

Further, in reply to this petition the Election Commission on 28^th October waived the objections and held that the statements and promises made by the party do not violate any code of conduct specifically those mentioned above. Hence the Election Commission of Indian disposed of the petition. 

(Food for thought- What truth will the above-mentioned statement hold for a common man’s understanding and is it likely to exert undue influence on people? – will be added in the slides) 

VODAFONE WINS AGAINST GOI- Arbitration Suit

Vodafone International Holdings BV v. India (PCA Case No. 2016-35)

Vodafone in 2007 acquired 67% stake in an Indian company named ‘Hutchison Whampoa ltd’ The Indian revenue authorities imposed tax on the same despite the fact that the transaction was an offshore transaction and among two non- residents. The Indian revenue authorities levied approximately Rs. 20,00 crore capital gains tax on Vodafone. 

The issue raised was regarding the jurisdiction of the Indian Revenue authority to perform such actions. The action taken by the authority was challenged before the Supreme court of India in Vodafone International Holding (VIH) v. Union of India (UOI).  The judgement favoured Vodafone after which there were attempts of mediation among the parties. Failure of which led to arbitration suits among the parties in 2014. 

Vodafone claimed that the action taken by the Government of India was violative of fair and equitable treatment as stated in Article 4 of India- Netherlands Bilateral Investment Treaty. 

And the Government claimed that the new tax reform- the Finance Bill, 2012 which came after the SC’s verdict allowed the addition of explanation in Section 9 of the Income Tax Act included such transactions and the same ought to have a retrospective effect on the deals.

As of now, the treaty stands terminated. The Permanent Court of Arbitration, Hague at last declared the award in favour of Vodafone. The government of India has to not only pay the company a huge amount of compensation but also 60% of the legal costs unless the government opts for further appeal.

Effects of the Vodafone – India case

(This is for another short post- don’t merge with above)

India’s Bilateral Investment Treaties with other countries are in danger since the recent arbitral award will attract other countries/parties to invoke the  ‘fair and equitable treatment’ (FET)  clause.  

This is to the extent that any law imposed by India amounts to violation of the FET clause. For instance the award will be relied on in the disputes in the following BITs

1. Russia-India BIT
2. Australia-India BIT

DISCREPANCIES IN THE PRIVACY AND DATA PROTECTION BILL, 2019

Following the landmark Puttaswamy Judgement, a committee was appointed under Justice Srikrishna in order to draft a bill for ensuring privacy and data protection. This committee proposed a bill in 2018 wherefore it was amended by the government and titled- PDP Bill, 2019 which is yet to be passed, with some significant changes-  

1. Section 14 states that processing of personal data for ‘other reasonable purposes’ can be done by the government and the Data Protection Authority (DPA) without obtaining consent. However, giving notice of the same to the Data Principal (person the data relates to) is not mandatory and has to be decided by the government/authority. 
2. Section 35 gives the Central Government power to exempt any agency of government from application of the Act i.e. surveillance of personal data can be done as well if directed and exempted by the Central Government.
3. Section 91 (2) states that the Central Government can access anonymized personal data or non-personal data for better targeting of services. 
4. The Data Protection Authority’s powers are diluted in the 2019 Bill, for e.g. the Central Government has the power of categorizing sensitive personal data whereas in 2018 bill the same was granted to DPA. 

These changes were looked down upon by Justice Srikrishna. There are various other provisions in the act that need to be in line with the principles laid down in the Privacy Judgment considering the fact that right to privacy is a fundamental right and the bill needs to guard the right and not exploit it. 

Writ petition can’t be filed against a judicial order of hc-supreme court

The Apex Court in a recent judgement-  “Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs” reinstated a crucial point of law. 

It held that a writ petition under Article 226 of the Indian Constitution is not maintainable to challenge a judicial order or any order which has been passed by the High Court in exercise of its judicial powers. 

The decision was laid by a two judge bench consisting Justice DY Chandrachud and Justice KM Joseph in exercise of power of the Supreme Court to transfer cases under Article 139A.

The petitioner in the present case filed a writ petition under Article 226 in order to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the Karnataka High Court under its criminal revisional jurisdiction. The petitioner prayed through the petition that the said judgement may be declared void/disabled/recalled and a fresh hearing be instituted before a higher/full bench. 

The petitioner based her submissions on the grounds that the order had not been written by the Judge of the HC and that while disposing the criminal revision the court had exercised its jurisdiction in a manner inconsistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. Further, she challenged the findings of the court; deeming them to be erroneous. 

The respondent claimed that the litigant is not without any remedies since she can approach the court through Letters Patent Appeal or by way of a review or through article 136.

The court ruled in favour of the Respondent and disallowed the Writ Petition on grounds of maintainability. 

But SC left open the rights and remedies available to the petitioner by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge bench.