Day 4 Arguments

September 24th 2019

Facebook Inc. has filed a series of transfer petitions relating to the mandatory linking of Aadhaar to social media accounts. There are currently cases before the Madras, Bombay and Madhya Pradesh High Courts relating to the issue and Facebook Inc has expressed concern that the High Courts may produce differing outcomes.

In the previous hearing, the Bench comprising Justices Deepak Gupta and Aniruddha Bose directed the respondents, including the Union government, to file its reply.

Today’s hearing before the Bench comprising Justices Deepak Gupta and Aniruddha Bose saw it direct the Union to file an affidavit indicating the time required for framing guidelines to curb misuse of social media. The Bench further observed that given the technical complexities involved in the matter, it was only appropriate that the Government deal with the matter first.

Concerns about social media misuse and framing of guidelines

The day’s hearing began with the Attorney General, KK Venugopal, appearing for the State of Tamil Nadu, submitting that the High Courts were concerned about the misuse of social media. Nevertheless, he submitted that social media entities were not interested in High Courts deciding the matter and the present transfer petitions have been filed as a dilatory tactic. To these submissions, Solicitor General, Tushar Mehta, added that the Union was in the process of framing guidelines for curbing the misuse of social media. He further submitted that he was unaware of the status of the guidelines and the time within which they will be ready.

The Bench, at various points, indicated its uneasiness with the way in which social media was being misused and how victims of online crimes had no feasible mechanisms to combat them. Specifically, Justice Gupta enquired how a person defamed online could identify the perpetrators. To this query, the AG submitted that one of the tools available for the law enforcement agencies was Rule 3 (7) of the Information Technology (Intermediaries Guidelines) Rules 2011. As per the said Rule, intermediaries like WhatsApp and Facebook were obligated to provide information to the law enforcement agencies, when asked for, said the AG. Nevertheless, he submitted that the social media entities have been largely reluctant to share such information, citing technological limitations. Sr.Adv. Kapil Sibal, appearing for the Petitioners, sought to refute this claim and indicated that only the end-to-end encrypted information was being withheld.

Privacy balancing

Another major theme which emerged during the hearings was the need to account for the right to privacy while framing the guidelines. The Bench observed that information sharing by social media entities with law enforcement agencies will have to be done keeping in mind the privacy rights of the individual users. In this regard, Sr. Adv. Mukul Rohtagi submitted that the decision in Puttaswamy had radically redefined the contours of privacy rights in India and it would be appropriate for the Supreme Court to decide the matter rather than various High Courts giving conflicting opinions. He further submitted as to how the decision in Shreya Singhal had reshaped the ambit of Rule 3 (7) and that AG’s submissions had failed to take the same into consideration.

Upon hearing the above submissions, the Bench directed the Union to file an affidavit within 3 weeks, indicating the timeline within which the proposed guidelines would come into force. Furthermore, the Bench also refused to stay the proceedings before the Madras High Court, indicating that the HC was aware of the guidelines being framed. Thereafter, the Bench directed the matter to be listed for 22 October, 2019.

(Court reporting by Siddhartha Iyer)