Delhi High Court - Orders
Aditya Singh Deshwal vs Union Of India & Ors on 28 March, 2022
Author: Vipin Sanghi
Bench: Navin Chawla, Vipin Sanghi
$~4.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2140/2021
ADITYA SINGH DESHWAL ..... Petitioner
Through: Petitioner in person.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Harish V. Shankar, Central
Government Standing Counsel with
Ms. S. Bushra Kazim & Mr. Srish
Kumar Mishra, Advocates for
respondent/ UOI.
Mr. Siddharth Luthra, Senior
Advocate with Mr. Saransh Jain,
Mr.Shloka N., Mr. Shaurya Rai,
Mr.Asif Ahmad & Mr. Aditya Raju,
Advocates for respondent No.3.
Mr. Karan Dhalla, Advocate for
Mr.Avi Singh, Additional Standing
Counsel, along with SI Pushpendra,
PS-Jagatpuri and SI Ichha Ram, PS-
Tilak Marg, for the State/ GNCTD.
Ms. Vrinda Bhandari, Advocate for
Atheist Republic.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 28.03.2022
1. We have heard the petitioner, Mr. Siddharth Luthra, learned senior Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:53 counsel on behalf of respondent No. 3, Mr. Harish V. Shankar, Advocate on behalf of respondent/ UOI. Ms. Vrinda Bhandari, learned counsel has also intervened on behalf of the Atheist Republic -whose content is what the petitioner is aggrieved by and which had been posted on the Twitter account of the said entity.
2. During the course of arguments, Section 69A of the Information Technology Act, 2000 has been referred to, which authorises the Central Government or any of its officers specially authorised by it in this behalf to, inter alia, with a view to maintain public order and to prevent incitement to the commission of any cognizable offence relating to aspects of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order, by a reasoned order, direct any agency of the Government or intermediary to block for access by the public, or cause to be blocked for access by the public, any information generated, transmitted, received, stored or hosted in any computer resource.
3. The petitioner has placed on record the Twitter posts posted by Atheist Republic which, prima facie, would offend the religious sensibilities of any reasonable follower of the Hindu faith. It is on that account that this Court vide its initial order dated 29.10.2021 directed respondent No.3 to remove the URLs containing the objectionable posts which were also mentioned in Para 3 of Annexure-P2 of the writ petition.
4. First and foremost, we direct the respondent No.1 to examine the said posts or any similar posts that may have been posted by Atheist Republic and to examine whether action is called for under Section 69A of the Information Technology Act, 2000.
5. Our attention has also been drawn to the Information Technology Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:53 (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Though it is pointed out by learned counsels that the constitutionality of these Rules is under challenge in several proceedings before the High Courts, including the High Court of Delhi, and transfer petitions have been preferred before the Supreme Court, admittedly, there is no stay of the proceedings before the High Court and the operation of the said Rules has also not been stayed - except in relation to the Rules made under Part III, by any Court.
6. Rule 3(1)(a) to 3(1)(d)of the Rules are relevant and read as follows:
"(a) the intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the rules and regulations, privacy policy and user agreement for access or usage of its computer resource by any person;
(b) the rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,--
(i) belongs to another person and to which the user does not have any right;
(ii) is defamatory, obscene, pornographic, paedophilic, invasive of another's privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;
(iii) is harmful to child;
(iv) infringes any patent, trademark, copyright or other proprietary rights;
(v) violates any law for the time being in force;
(vi) deceives or misleads the addressee about the Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:53 origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
(vii) impersonates another person;
(viii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation;
(ix) contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;
(c) an intermediary shall periodically inform its users, at least once every year, that in case of non-compliance with rules and regulations, privacy policy or user agreement for access or usage of the computer resource of such intermediary, it has the right to terminate the access or usage rights of the users to the computer resource immediately or remove non-compliant information or both, as the case may be;
(d) an intermediary, on whose computer resource the information is stored, hosted or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:53 relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force:
Provided that any notification made by the Appropriate Government or its agency in relation to any information which is prohibited under any law for the time being in force shall be issued by an authorised agency, as may be notified by the Appropriate Government:
Provided further that if any such information is hosted, stored or published, the intermediary shall remove or disable access to that information, as early as possible, but in no case later than thirty-six hours from the receipt of the court order or on being notified by the Appropriate Government or its agency, as the case may be:
Provided also that the removal or disabling of access to any information, data or communication link within the categories of information specified under this clause, under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) by such intermediary, shall not amount to a violation of the conditions of clauses (a) or (b) of sub-section (2) of section 79 of the Act;"
7. The submission of Mr. Luthra - who appears for respondent No.3, is that in terms of Clause (d) of Rule 3(1), only upon receipt of actual knowledge in the form of an order by a Court of competent jurisdiction, or on being notified by the Appropriate Government or its agency under Clause
(b) of Section 79(3) of the Act, the respondent No.3 would be obliged not to host, or store, or publish any unlawful information, which is prohibited under the law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality, etc. He submits that since there was no order to remove the content posted by Atheist Republic prior to the order passed by this Court, respondent No.3 was not obliged to Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:53 remove the same. However, once the order was passed, on 29.11.2021, the offending posts of Atheist Republic have been removed. He submits that the petitioner filed his rejoinder on 09.12.2021 pointing out certain other posts of Atheist Republic, which too have been removed today morning. He submits that respondent No.3 cannot block the account of Atheist Republic altogether.
8. We can take notice of the fact that respondent No.3 has blocked the accounts of certain individuals in public life from time to time. We direct respondent No.3 to place before this Court its policy and explain as to under what circumstances it has resorted to such blocking of the Twitter account of individuals.
9. Prima facie, we also find the above submission of respondent No.3 to be not entirely correct.
10. The respondent No.3 enters into a user agreement in terms of its rules & regulations and privacy policy. Rule 3(1)(c) quoted hereinabove, obliges the intermediary to periodically inform its users, at least once every year, that in case of non-compliance with the rules & regulations, privacy policy or user agreement for access or usage of the computer resource of such intermediary, the intermediary has the right to terminate the access or usage rights of the users to the computer resource immediately or remove non- compliant information or both, as the case may be.
11. Moreover, the last Proviso to Rule 3(1)(d) grants protection to the intermediary against alleged violation of Section 79(2) Clauses (a) or (b), even if it voluntarily removes or disables under Clause (b), access to any information, data or communication link, within the categories of information specified under said Clause, or on the basis of grievances Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:53 received under sub-rule (2) by the intermediary.
12. The intermediary is also obliged to set up a grievance redressal mechanism under Rule 3(2).
13. Rule 4(4) obliges the significant social media intermediaries - which respondent No. 3 is, to endeavour to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary under clause (d) of sub-rule (1) of Rule 3, and to display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in said sub-rule.
14. Since respondent No.3 has not questioned the prima facie view of this Court with regard to nature and content of the offending posts of Atheist Republic, in our view, respondent No.3 should have on its own - without waiting for today's hearing arriving, taken down the posts of Atheist Republic which were pointed out by the petitioner as early as on 09.12.2021.
15. Ms. Vrinda Bhandari - who puts in appearance on behalf of Atheist Republic seeks to be heard in the matter. We, accordingly, implead Atheist Republic as a party respondent. The amended memo of parties be filed within one week. We direct her to place on record on affidavit the status of Atheist Republic, namely, its constitution; its location; whether it is having any place of business in India; and also place on record the particulars of its authorized officers/ representatives situated in India.
Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:5316. Ms. Vrinda Bhandari undertakes, on instructions from Atheist Republic, that any offending material - of the nature already directed to be removed by the Court and actually removed by respondent No.3 from its computer resource, shall not be uploaded till this matter is decided by the Court. Atheist Republic shall remain bound by this undertaking.
17. Ms.Vrinda Bhandari shall file her Vakalatnama and affidavit within two weeks. Let a complete copy of the paper book, including the filings post the initial filing of the writ petition, be served upon her electronically by the petitioner within the next two days.
18. In the meantime, counter-affidavits shall be filed by respondents No.1 and 3 within four weeks. Atheist Republic - the newly added respondent, shall also file its counter-affidavit within six weeks of service. Rejoinder, if any, be filed before the next date.
19. List on 06.09.2022.
VIPIN SANGHI, ACJ NAVIN CHAWLA, J MARCH 28, 2022 B.S. Rohella Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:29.03.2022 20:21:53