SC Constitution Bench on Aadhaar- Final Hearing (Day XXXV)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Advocate Zoheb Hossain continued his submissions for the State of Maharashtra and the UIDAI. He began with referring to various international charters and covenants, stressing on the importance of harmonizing between the economic and social rights and the civil and political rights.

Justice Chandrachud noted that the Directive Principles, even though they are non justiciable, are necessary for good governance and as a guarantee of reasonableness of the law. This is why they are read into Article 21.

The counsel argued that all rights give rise to corresponding duties, and that Aadhaar was a project to secure the economic and social rights of the people. He then brought the Court’s attention to the Justice Wadhwa Committee Report on the Public Distribution System. He then brought the Court’s attention to various precedents. He referred to the case of DK Trivedi, where the Court had held that ensuring socio economic welfare was a constitutional obligation of the State. Further, it had been held that a statute could not be judged on the presumption that the executive power that it confers would be abused, or used arbitrarily.

The counsel then referred to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and resolutions of the UN General Assembly. He reiterated that rights were indivisible and interconnected, and that socio economic rights were equal to the civil and political rights.

The counsel then argued that the proportionality and reasonableness of a restriction must be examined from the point of view of the general public, and not that of a specific party that claims to be affected. He argued that even if Aadhaar is used for different purposes such obtaining a SIM card or opening a bank account, the data remains disaggregated. He stated that as a consequence, there was no possibility of surveillance, even at the level of the Requesting Entities.

The counsel then drew a comparison between Aadhaar and the Social Security Number in the United States. He noted that the SSN was used for a variety of purposes, and that people could be denied benefits for not producing their SSN. He argued that the Courts in the US had upheld the firing of an employee for refusing to provide his SSN. The counsel then argued that the Aadhaar Act had sufficient safeguards in place over the identity and authentication information. He referred to Section 33 of the Act, noting that decisions made under that Section were subject to review by an oversight committee. He concluded that the safeguards in place were greater than what are provided by the Telegraph Act, and the standards laid down by the Supreme Court in the PUCL case.

Post lunch, the counsel resumed his submissions for the Respondents with examining how various search and seizure related provisions under the IT Act and CrPC had passed constitutional muster. He then proceeded to the issue of ‘national security.’ He argued that in times of emergency, a strict adherence to the principles of natural justice is not necessary. He referred to a House of Lords decision that read in a national security exception to a statute even though the text did not provide  for it.

He then addressed the contention with respect to Section 47 of the Aadhaar Act, arguing that it provided for sufficient remedy since a complaint could be filed to the UIDAI. He argued that Aadhaar had many technical aspects, so it would be best if only the Authority has the power to complain. He noted that a similar setup in the Industrial Disputes Act had been previously upheld. In addition, he noted that the UIDAI could authorize a person to make a complaint as well.

The counsel then submitted that the Aadhaar Act had sufficient safeguards for the CIDR, while provisions under the IT Act would cover actors outside the CIDR.

The counsel then framed the purpose of Section 139AA of the Income Tax as a measure to ensure redistributive justice, to ensure substantive equality. He argued that ‘distribute’ in the Directive Principles had been interpreted liberally, and measures to prevent leakages would thus be considered redistributive.

The counsel then moved to the addressing the argument about compelled speech. He argued that not all transactions can be considered to have a speech element, for instance linking the Aadhaar to PAN. He further noted that the Court in Puttaswamy had held that rights could be curbed to prevent tax evasion and money laundering. He added that the Income Tax Act and the Aadhaar Act were standalone Acts, and that after Binoy Viswam, it was settled that they were not in conflict. He responded to the contention that only individual tax payers had been mandated for linkage, stating that a measure need not strike at all evils at once. He argued that the linkage could help cure ills with companies as well, by revealing the people behind them. The linkage can allow the deduplication of DINs. Advocate Zoheb Hossain then concluded his arguments.

The Attorney General then began his arguments, by addressing the Money Bill issue. He argued the Act was, in pith and substance, a Money Bill. ‘Targetted Delivery of Subsidies entails the expenditure of funds. He argued that every act would have ancillary provisions dealing with review, appeal etc., but the primary purpose deal with the Consolidated Fund of India.

Justice Chandrachud questioned the counsel about whether Section 57 of the Act severed that link. The AG responded that the Section merely allowed the existing infrastructure to be used for other purposes, and was just an ancillary provision. The UIDAI had been brought into existence primarily to prevent leakages and losses.

Justice Sikri noted that there was no distribution of benefits or subsidies under Section 57. The AG argued that the Section would be saved by Article 110(1)(g) of the Constitution, and stressing on an interpretation of the word ‘only’ in the Article. Justice Chandrachud suggested that that might amount to rewriting the Constitution.

The Attorney General will resume his arguments on May 3, 2018.

 

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SC Constitution Bench on Aadhaar- Final Hearing (Day XXXII)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Senior Counsel Rakesh Dwivedi resumed his arguments for the Respondents. He began with referring to jurisprudence from the United States, the United Kingdom, South Africa and the European Union, to describe how privacy should be constructed in the Indian context. He argued that Indian jurisprudence is more in line with that of the United States, than the European Union. He stated that that former lays greater emphasis on the ‘reasonable expectation to privacy’. He then quoted a Harvard Law Review article, for the proposition that privacy should be tempered by considerations such as national security, efficiency, and entrepreneurship. He argued that that was especially true in the Indian context, where innovation and development should have more emphasis than privacy.

The counsel made reference to Justice Chandrachud’s opinion in Puttaswamy, and argued that social welfare could be a legitimate purpose for processing of data. Coming back to the construction of privacy, he argued that all Aadhaar data was in the public, relational sphere. He submitted that privacy is diluted in these realms, so there is a reduced expectation of privacy over data such as demographic data, and facial photographs. He reiterated that data with the Requesting Entities was dispersed, and therefore didn’t require the same level of protection as the CIDR.

Justice Chandrachud sought a clarification, if the submission was that core biometrics had a higher privacy interest, as opposed to demographic data, such as one’s address. He countered that the implication was not that the privacy interest in such data was gone. He gave the example of a woman and her address. He argued that she might give her address out for various purposes, but still had immense privacy interest in that information. The counsel responded that their argument was simply that privacy varies according to context.

The counsel argued that India had developed the appropriate tests in VG Row, much before any other jurisdiction. He reiterated the three-fold requirement of legality, necessity and proportionality. He noted that Indian jurisprudence generally did not adopt the due process standard. The counsel then addressed some of the cases that had been cited by the Petitioners, and attempted to distinguish them on facts.

Post lunch, the counsel resumed his submissions, with the issue of metadata collection. He attempted to distinguish the present case from Digital Rights Ireland, which had been cited by the Petitioners. The counsel argued that there were different types of metadata, and the data in question in those cases had been much more intrusive than what is collected by the Aadhaar authentication. He reiterated that the test is that of ‘appropriate safeguards’. He cited the case of Sundar Rajan v State of Tamil Nadu, which dealt with the Kundankulan nuclear power plant. He argued that the court had examined whether adequate safeguards had been in place, and had given due weight to economic benefits such as the increase in welfare, poverty alleviation etc. He argued that the Court in Sundar Rajan had held that apprehensions and fears could not be allowed to override the justification of the project. The counsel reiterated that the standard would be of ensuring adequate safeguards, and the risk would never be zero.

The counsel argued that the Aadhaar Act imposes a complete bar on sharing of the data, factors in consent, and the data with Requesting Entities was in any case disbursed and decentralized. He argued that the Petitioners had not suggested any way of improving the system, and only wanted it dismantled.

Justice Chandrachud asked what remedy was present in case of breaches. The counsel responded that the Information Technology Act would be applicable, which had penal provisions. Further, the route of contractual damages could be taken.

The counsel then described the EU Data Protection Directive, arguing that the purpose of the Directive was very different, with the aim being to ensure free flow of data. He argued that in contrast, Aadhaar didn’t allow any sharing of data. He argued that as a result, the absence of a regulation such as the Directive, or the General Data Protection Regulation would have no bearing on the matter at hand. He reiterated that the protections in the Aadhaar Act were sufficient, and even higher than those provided by the EU instruments. The counsel then went over the various provisions of the Directive and Regulation that govern the processing of sensitive information.

The counsel then resumed his submission with respect to metadata, as a response to the surveillance concerns raised by the Petitioners. He argued that the Petitioners had not appreciated the distinction between different types of metadata, such as system metadata, process metadata, business metadata etc. He argued that each had to be examined separately. He submitted that Aadhaar authentication only collected limited technical metadata.

The Chief Justice asked why the data had to be retained, and what sort of data was actually retained. The counsel drew the Court’s attention to an affidavit he had submitted, as well as the relevant circular which prescribes the metadata that is collected. He argued that it was all system related metadata, which allowed the UIDAI to exercise control over the Requesting Entities. He argued that information such as location data, the purpose for authentication, was not collected in the process.

The hearing will continue on April 25, 2018.

 

SC Constitution Bench on Aadhaar- Final Hearing (Day XXX)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Rakesh Dwivedi resumed his arguments for the Respondents. He began with the issue of  Section 7 and exclusion. The counsel responded to the argument about probabilistic systems by submitting that there are alternatives that are allowed by the Act. In the event of an authentication failure, the first alternative is to produce a proof of possession of Aadhaar. The second alternative is to provide enrollment ID, for people who haven’t yet received the Aadhaar. He submitted that the UIDAI had issued directions to this effect. A refusal to comply would be a breach under the Aadhaar Act.

Justice Chandrachud asked if the Section 7 proviso would apply to someone who had not applied for Aadhaar. The counsel replied in the negative. The counsel continued, describing the Regulation. He submitted that for State and Central agencies that require Aadhaar for benefits, they are required to ensure enrollment, including the setting up of coordination centres. Further, in the context of PDS, he argued that Clause 5 of the relevant notification allowed any member of a household to claim the benefit. He concluded that there could be no question of denial, as a result of these measures.

Justice Chandrachud asked if the systems had been tested in remote areas, with limited connectivity, such as Ladakh. Section 7 is silent on alternatives in such cases. The counsel responded that certain exemptions had been notified in the regulations.

The counsel reiterated that the system should not be demolished, but improved so that it could work. He then submitted that even today, we live in a relational world. One cannot pick and choose how one relates to the world; or how one establishes identity. All institutions require some kind of identity, and have some conditions about it.  He argued that this wasn’t a question of dignity, because these are regulatory conditions. He stated that these are permissible, and the only standard is if a fundamental right is being violated.

The Bench noted that the counsel was trivializing the Petitoners’ argument. They noted that the central concern was that of centralization of the database and its misuse.  Justice Chandrachud further argued that the issue was why only one identity had been mandated, and why multiple identities could not be allowed.

The counsel responded that one must go by the rules of the institution they want to participate in. He provided the example of the Proximity Card of the Supreme Court. Justice Chandrachud asked if the form of identity should relate to the purpose of identification. The counsel agreed, stating that there should be a rational nexus. However, he argued that allowing different forms of identity to be submitted would lead to a slippery slope which would destroy the whole purpose of the system.

Justice Bhushan added that many of the other forms of identification don’t have pan-India operation. The counsel agreed, noting that they were also sectoral, without any portability. In comparison, he argued, Aadhaar is universal. Aadhaar is also unique on account of the use of biometrics. If you abandon biometrics, the unique nature is lost. He submitted that even Smart Cards use biometrics.

Justice Chandrachud reiterated the concern about aggregation and analysis of data. The counsel responded that all protections that were socially and legally possible were in place.

He continued, stating that the argument about biometrics providing knowledge about the person was incorrect. He argued that while DNA might contain such information, fingerprints don’t. Further, only one fingerprint would be present with the Requesting Entities. Justice Chandrachud clarified that the issue was not of the biometrics themselves, but their attachment and linking to everything else, which could become a source of information about the individual. The counsel responded that no single Requesting Entity would have access to all of that information. It would be delegated and segregated. Further, any collusion or aggregation would not possible. Any misuse would require corruption at an inconceivable scale. In addition, most of the authentication would be required very rarely – once a year, or once in a lifetime. For PDS, it would be once a month.

At this point Shyam Divan interjected, that Banks had been demanding Aadhaar every time a Fixed Deposit is opened. The counsel responded that for most people, that is also a rare occurrence. Further, that was an issue on the Bank’s side, and not mandated by the Act. He argued that that can be examined separately. If the law were to be changed, to mandate authentication for every transaction, that could be questioned and challenged.

The counsel then moved on to the issue of clashes between fundamental rights. He brought the bench’s attention to the Preamble to the Constitution. He argued that the Preamble states that certain values are to be ‘secured’ by the state, and certain are to be ‘promoted.’ He argued that this imposes an obligation on the state to provide the basic minimum (for instance, minimum wages) to people. He argued that there was therefore a hierarchy, and the right to life should triumph over the right to privacy. He argued that for the people to without the bare minimum, the Constitution would amount to a mere paper Constitution.

Justice Chandrachud noted that dignity was not a peripheral value in the Constitution, but the core foundation of all rights. The Constitution protects dignity in all its forms, and food security and privacy were both aspects of dignity. The counsel responded that when they were in conflict, the first must have primacy over the second. He noted the NALSA judgment, which according to him brought about a paradigm shift in our conception of dignity.

Justice Bhushan questioned if they had to be read in conflict, and could not be recognized together. The counsel responded that they were arguing for a balanced approach, and in this case, in the favour of the right to life.

Justice Chandrachud asked if this would require a proportionality test. He stated that the question was whether the incursion on privacy is so less, to justify the benefits that have been claimed. The counsel responded that in the case of a restriction on a right, the burden lies on the state. However, this was a case of an interplay between rights. Justice Chandrachud countered that the burden was still with the state. The counsel responded that they were only submitting that the parameters for scrutiny would be different. Further, that Article 21 supersedes the rights under Article 19 and 14. Life would come first, and the other rights wouldn’t mean anything without it.

The counsel then resumed arguing for the relevance of biometrics, noting that large parts of the population were illiterate. Their thumbprints were all they had had to use in the conduct of their lives.

The Chief Justice noted that the real problems were of surveillance, aggregation, privacy and exclusion, which have to be addressed. The counsel said that the subsidies were in furtherance of life, liberty and dignity.

Justice Chandrachud asked for a clarification, whether the respondents were arguing for the tests under Puttuswamy to be abandoned. The counsel responded in the negative, and that Section 7 was not examined in Puttuswamy.

He then went on to quote from the Universal Declaration of Human Rights, and excerpts from Kesavanda Bharathi, the NALSA judgment, and German human rights jurisprudence.

The hearing will continue on April 19, 2018.

 

SC Constitution Bench on Aadhaar- Final Hearing (Day XXIX)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Rakesh Dwivedi resumed his arguments for the Respondents. He began with stating that if there were problems with the system, they should be fixed, rather than the system being demolished completely. He argued that under Section 8 of the Act, the sharing and use of information was confined specifically to the authentication process. He further argued that the mandate of Section 29 states that core biometrics cannot be shared.

Justice Chandrachud asked how the UIDAI planned to control the Requesting Entities. The Counsel responded that control could be in terms of technical specifications of the devices, mandating approved software, mandating information systems audits etc.

In response to Justice Chandrachud’s query about the framing of Sections 8 and 29, the Counsel reiterated that the sharing of information would be limited to the process of authentication. Further, only non biometric information could be shared under Section 29.

Next, there was some disagreement between the counsel and Justice Chandrachud on the interpretation of Section 8. The Counsel stated that the Requesting Entity would not know the purpose for the authentication, but only that authentication had been done. Justice Chandrachud stated that that could be true for UIDAI, but it was uncertain if that would be true for Requesting Entities. According to him, the language of the Act didn’t conform to this design. Justice Sikri added that that would also render Section 8(3) redundant. The Counsel responded that the Bench could chose to read the Act in that way.

Justice Chandrachud then gave an example of an individual who goes to the hospital for certain services. The hospital sought authentication for him, 122 days out in 6 months. He noted that that would be potentially extremely valuable information for pharmaceutical companies, insurance providers etc. Until there was a data protection law, this could be a problem.

The counsel responded that no other jurisdiction has the sort of protections that the Aadhaar Act provides. Justice Chandrachud asked if the protection under the Act was all the data protection the citizens of India would ever need. He also gave the example of the European Union’s General Data Protection Regulation as an example of a comprehensive framework for data protection. The Counsel replied that the Aadhaar Act was sufficient, and in many ways superior. According to him, the GDPR has no penal provisions, and the States have to enact their own, which creates a patchwork. The Counsel argued that the Aadhaar framework has technological security, auditing, as well as penal provisions in place. He went on to say that there could never be 100% surety about anything. The standard to be sought was that of reasonable safeguards, and reasonable protection. He noted that none of the Petitioners had pointed out what more could be done.

Justice Chandrachud then noted that according to the Counsel’s reading, Sections 8(3) and 29(3) could be excised from the Act. The Counsel responded that nothing needed to be excised from the Act, only clarified. Further, there was no intent, purpose, or objective in the Act to allow aggregation of data, its analysis or transfer. In addition, any breach of the provisions would be punitive.

Justice Chandrachud observed that it is hard to predict commercial ingenuity, and it wouldn’t be possible to tell what use the Requesting Entities could make of the data with them. Justice Sikri interjected with the earlier hospital example, noting that the hospital would already have the data about medical treatments of the patients, and may not need Aadhaar to get that information. The main apprehension was one of misuse. The counsel agreed, questioning whether Aadhaar was adding to the problem, or making it worse in any way.

Justice Chandrachud noted that they must evaluate what safeguards can be introduced. He noted that data about individuals was now being used to influence electoral outcomes.

The counsel responded that Cambridge Analytica should not be brought into the discussion, because the nature of the data was different. Justice Chandrachud interjected, stating that that incident was symptomatic of the present times. The counsel responded arguing that the algorithms employed were different. There is a difference between matching algorithms (which Aadhaar uses) and sorting algorithms (which these companies use). He argued that there were many different types of algorithms, and the Petitioner’s had confused this distinction.  He concluded that the data could not be analyzed by the Respondents. If at all, they would have to go through proper procedure.

The counsel continued, stating that Smart Cards were entrenched technology and that the Smart Card lobby in the West didn’t want Aadhaar to succeed. He claimed that other countries like Singapore were looking to replicate our model.

Justice Chandrachud noted that the issue was that there is a big world that interacts with Aadhaar. He said that the UIDAI might only be the least of their problems, since it is a government entity subject to a lot of scrutiny. The Counsel reiterated that only matching algorithms are used.

Coming back to the Act, the counsel submitted that Requesting Entities cannot be enrolled unless they establish the need for authentication.  Justice Chandrachud asked what the purpose behind opening Aadhaar to private players was. In response, the Counsel argued that the nature of the public-private divide was changing. Private companies have been entering fields that were historically the domain of the public sector. The companies are funded by money from Banks, where the people have made deposits. So, it was actually the public that is funding these players. He argued that private players that perform public functions should also be subject to constitutional norms, review and scrutiny. Currently, public companies are subject to many restrictions, such as standards of reasonableness, while no similar shackles apply to private companies. He concluded stating that that was a larger debate for another time. For now, all that was necessary to know is that private players are also regulated by the Act.

The counsel then moved on to responding to the Petitioner’s argument that the Aadhaar framework amounted to the numbering of human beings. Counsel argued that we have been numbering humans for a long time. He cited the PNR number for flights as an example. He also noted that the Supreme Court proximity cards were numbered.

Justice Chandrachud responded that Aadhaar was a unified identity, as opposed to multiple identifying numbers. The counsel responded that just because they were assigning numbers for a specific purpose, didn’t mean that they were numbering people. Further, they were not collecting information such as race, caste etc.

Justice Chandrachud then asked how the Aadhaar became a mandate, from a mere entitlement. The Counsel responded that the Aadhaar was an entitlement, and the UIDAI was mandate neutral. It is the government that notifies that certain linkages are mandatory. Each of these could be examined or challenged separately.

The counsel resumed his arguments after lunch by examining the scope of Section 57.  He argued that the objective of the section was not to expand, but to limit power. He submitted that if this limitation did not exist, anyone could become a Requesting Entity. The provision requires that there must be a law, or a prior contract.

Justice Chandrachud asked if once there was a prior contract under Section 57, if the UIDAI would be bound to offer authentication.  The Counsel responded that UIDAI could still refuse, and there was a requirement of necessity. Further, this embargo was applicable to anyone, which is why State Resident Data Hubs are no longer possible.

The Bench noted that nothing in the Act seems to give UIDAI this type of discretion, and questioned whether there were any guidelines for how the UIDAI would come to its decisions. The counsel responded that the power came from Section 57. He gave the example of the CBSE, noting that there had been many cases of fraud. The Board could apply to be a Requesting Entity for the purpose of conducting the exam. However, this would require the presence of a prior contract, and it cannot be an ex post facto exercise. He argued that this contract must also state that authentication must be in accordance with Sec. 8 and Part VI of the Aadhaar Act.

The counsel then went on to examine the Information Technology Act, arguing that all the provisions and safeguards under that Act and its Rules would also be applicable. For instance, the CIDR had been notified as a protected system under the Act.

The counsel then discussed the attributes and benefits of biometric data. He argued that Aadhaar brings service providers face to face with the beneficiaries. He noted that Aadhaar would not be a panacea for all problems, but the issue of fake identity documents would be solved.

He then responded to other arguments raised by the Petitioners. In response to the argument that there was no legal mandate to store information in the CIDR, he brought the Bench’s attention to Section 10 of the Act. On the argument of the use of foreign suppliers and licensors, the Counsel responded that the hardware all belonged to the UIDAI, and even technicians only had access when there was some troubleshooting required. In response to the system being probabilistic, he argued that there were appropriate fall back mechanisms under Section 7.

The hearing will continue on April 18, 2018.

 

Pachauri defamation suit: Court rejects interim gag order plea

The Patiala House court at Delhi has rejected R. K. Pachauri’s plea for an interim gag order against NDTV, Bennett Coleman and Co., and the India Today Group. The media houses had been made defendants in a defamation suit filed by him in 2016.

In 2015, an FIR had been filed against Pachauri by a woman employee of TERI (The Energy and Resources Institute, of which he was then the Chief) accusing him of sexual harassment. Following these allegations, several other women had spoken out about similar experiences while they had worked at the organization. The allegations and ongoing proceedings had received extensive coverage in the media.

Pachauri filed for defamation against multiple parties, including the media houses, one of the women who had spoken out, as well as her lawyer. He sought a gag order against the media houses, and damages of Rs. 1 Crore from the victim and her lawyer.

We have written previously about how suits such as these are in the nature of ‘SLAPP’ suits – Strategic Lawsuits Against Public Participation. These are cases where powerful individuals and corporations use litigation as a way of intimidating or silencing their critics. The defendants are usually media houses or individuals who are then forced to muster the resources to mount a legal defense. Even if they are able to secure a victory in Court, it is at the cost of a protracted and expensive process.

The court has now refused to grant an interim injunction against the media houses, noting the right of the public to be aware of the developments. It further noted that public figures can be held to a higher degree of scrutiny by the public. However, it has also held that further reportage must also carry Pachauri’s views, and indicate that the matter is still pending before the Court. The text of the order may be found here.

Facebook and its (dis)contents

In 2016, Norwegian writer Tom Egeland, uploaded a post on Facebook, listing seven photographs that “changed the history of warfare”. The post featured the Pulitzer-winning image, ‘The Terror of War’, which depicts a naked nine-year-old running from a napalm attack during the Vietnam War. Facebook deleted the post, and suspended Egeland’s account.

A Norwegian newspaper, Aftenposten, while reporting on the suspension, used the same image on its Facebook page. The newspaper soon received a message from Facebook demanding that the image be either removed, or pixelated. The editor-in-chief refused to comply in an open letter to Mark Zuckerburg, noting his concern at the immense power Facebook wielded over speech online. The issue escalated when several Norwegian politicians, including the Prime Minister, shared the image on Facebook, and were temporarily suspended from Facebook as well.

Facebook initially stated that it would be difficult to create a distinction between instances where a photograph of a nude child could be allowed. However, due to widespread censure, the platform eventually decided to reinstate the image owing to its “status as an iconic image of historical importance.”

This incident brought to light the tricky position Facebook finds itself in as it attempts to police its platform. Facebook addresses illegal and inappropriate content through a mix of automated processes, and human moderation. The company publishes guidelines about what content may not be appropriate for its platform, called its ‘Community Standards.’ Users can ‘flag’ content that they think does not meet the Community Standards, which is then reviewed by moderators. Moderators may delete, ignore, or escalate flagged content to a senior manager. In some cases, the user account may be suspended, or asked to submit identity verification.

As evident from the ‘Terrors of War’ incident, Facebook has often come under fire for supposed ‘wrong’ moderation of content, as well as opacity in how its community review process comes to be applied. It has been argued that content that is evidently in violation of Community Standards is often not taken down, while content that should be safe is censored. For instance, Facebook courted controversy again, when it was accused of blocking content and accounts documenting persecution of the Rohingya Muslim community in Myanmar.

Closer home as well, multiple instances of Facebook’s questionable moderation practices have come to light. In October 2017, Raya Sarkar, a law student based out of the United States, had created what came to be called, the List. The List named over 70 prominent academics that had been accused of sexual harassment. The approach proved extremely controversial, sparking debates about due process, and the failure of institutional mechanisms to address harassment. Facebook blocked her account for seven days, which proved equally contentious. Sarkar’s account was restored only after Facebook staff in Palo Alto were contacted directly. Similar instances have been reported of seemingly arbitrary application of the Community Standards. In many cases accounts have been suspended, and content blocked without notice, explanation or recourse.

Content moderation inherently involves much scope for interpretation and disagreement. Factors such as context, as well as cultural differences, render it a highly subjective exercise. Algorithms don’t appear to have reached sufficient levels of sophistication, and there exist larger issues associated with automated censoring of speech. Human moderators are by all accounts burdened by the volume and the psychologically taxing nature of the work, and therefore prone to error. The way forward should therefore be first, to ensure that transparent mechanisms exist for recourse against the removal of legitimate speech.

In light of the ‘Terror of War’ incident, Facebook responded by updating its community standards. In a statement, it said that it would allow graphic material that would be “newsworthy, significant, or important to the public interest — even if they might otherwise violate our standards.” Leaked moderator guidelines in 2017 opened the company up to granular public critique of its policies. There is evidently scope for Facebook to be more responsive and consultative in how it regulates speech online.

In June 2017, Facebook reached 2 billion monthly users, making it the largest social network, and a platform for digital interaction without precedent. It has announced plans to reach 5 billion. With the influence it now wields, it must also embrace its responsibility to be more transparent and accountable to its users.

The Supreme Court’s Free Speech To-Do List

Written by the Civil Liberties team at CCG

The Supreme Court of India is often tasked with adjudicating disputes that shape the course of free speech in India. Here’s a roundup up of some key cases currently before the Supreme Court.

Kamlesh Vaswani vs. Union of India

A PIL petition was filed in 2013 seeking a ban on pornography in India. The petition also prayed for a direction to the Union Government to “treat watching of porn videos and sharing as non-bailable and cognizable offence.”

During the course of the proceedings, the Department of Telecommunications ordered ISPs to block over 800 websites allegedly hosting pornographic content. This was despite the freedom of expression and privacy related concerns raised before the Supreme Court. The Government argued that the list of websites had been submitted to the DoT by the petitioners, who blocked the websites without any verification. The ban was revoked after much criticism.

The case, currently pending before the Supreme Court, also presented implications for the intermediary liability regime in India. Internet Service Providers may claim safe harbor from liability for content they host, as long as they satisfy certain due diligence requirements under Sec. 79 of the IT Act, read with the Information Technology (Intermediaries Guidelines) Rules, 2011. After the Supreme Court read down these provisions in Shreya Singhal v. Union of India, the primary obligation is to comply with Court orders seeking takedown of content. The petition before the Supreme Court seeks to impose an additional obligation on ISPs to identify and block all pornographic content, or risk being held liable. Our work on this case can be found here.

Sabu Mathew George vs. Union of India

This is a 2008 case, where a writ petition was filed to ban ‘advertisements’ relating to pre-natal sex determination from search engines in India. Several orders have been passed, and the state has now created a nodal agency that would provide search engines with details of websites to block. The ‘doctrine of auto-block’ is an important consideration in this case -in one of the orders the Court listed roughly 40 search terms and stated that respondents should ensure that any attempt at looking up these terms would be ‘auto-blocked’, which raises concerns about intermediary liability and free speech.

Currently, a note has been filed by the petitioners advocate, which states that search engines have the capacity to takedown such content, and even upon intimation, only end up taking down certain links and not others. Our work on this case can be found on the following links – 1, 2, 3.

Prajwala vs. Union of India

This is a 2015 case, where an NGO (named Prajwala) sent the Supreme Court a letter raising concerns about videos of sexual violence being distributed on the internet. The letter sought to bring attention to the existence of such videos, as well as their rampant circulation on online platforms.

Based on the contents of the letter, a suo moto petition was registered. Google, Facebook, WhatsApp, Yahoo and Microsoft were also impleaded as parties. A committee was constituted to “assist and advise this Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation” . The relevant order, which discusses the committee’s recommendations can be found here. One of the stated objectives of the committee was to examine technological solutions to the problem – for instance, auto-blocking. This raises issues related to intermediary liability and free speech.