SFLC.in’s advisory board member Anivar A Aravind has moved to the Karnataka High Court challenging the de-facto imposition of Aarogya Setu App and lack of specific legislation governing it.
He is represented by SFLC.in, Senior Advocate Colin Gonsalves, Advocate Clifton D Rozario, Advocate Kabir Ali Zia Choudhary and Advocate Avani Chokshi.
For updates and orders of each hearing, please check:
1. Karnataka High Court's case status
2. Aarogya Setu is optional for air passengers, Airport Authority of India informs Karnataka High Court
3. Karnataka High Court orders the State of Karnataka to clarify its stance on Aarogya Setu
4. Karnataka High Court allows amendment of petition in Aarogya Setu case: Update on petition challenging Aarogya Setu's voluntary-mandatory nature and lack of a specific legislation
5. Aarogya Setu is not mandatory for air or rail travel
6. Petition Challenging the de-facto imposition of Aarogya Setu in Karnataka High Court
[WP (MD) No. 7855 of 2019]
On April 3, 2019, after hearing a PIL on the banning of TikTok, the Madurai bench of the Madras High Court issued an ex parte (without hearing the other party) order to prohibit the downloading of the TikTok app in India along with restricting media from telecasting videos made on the app. The court reasoned that the use of TikTok may be harmful to children and the government had a responsibility to prevent misuse of such apps. Following this order, the TikTok app became unavailable on popular app stores.
The court did not consider TikTok's intermediary status as per the Information Technology Act, 2000, before issuing the ban.
Subsequently, on a request made to the Supreme Court by Bytedance (TikTok's owner), on April 22, 2019, the apex court directed the Madras High Court bench to decide on the matter by April 24, 2019.
On April 24, 2019, after hearing Bytedance and the court appointed amicus curae (court appointed independent counsel), the bench vacated its order banning TikTok.
More details at: https://sflc.in/madras-high-court-bans-downloading-tiktok
[CS (COMM) 724/ 2017]
On April 10, 2019, the Delhi High Court instituted new jurisprudence around copyrighted content on the internet - 'dynamic injunctions' by allowing rights holders to approach the joint registrar of the Delhi High Court to obtain blocking orders against similar websites which are violating the same content , rather than going through the arduous route of obtaining a judicial order each time. In this case, the petitioners requested for injunctions against a number of websites which they claimed were hosting copyright protected content.
Incidentally, the court did not go into the merits of whether these 'rogue websites' were protected by the safe-harbour protection afforded to intermediaries under section 79 of the Information Technology Act, 2000.
Public Interest Litigation challenging orders that were promulgated to impose Internet Shutdowns in Rajasthan to prevent cheating in examinations was filed at the Jodhpur High Court, located in the State of Rajasthan on July 25, 2018.
Home Department of Rajasthan submitted an additional affidavit stating that the suspension of Internet Services for conducting examinations does not fall in the ambit of ‘public safety’ or ‘public emergency’ as provided under the Temporary Suspension of Telecom Services Rules, 2017. In the light of the said affidavit filed by the State of Rajasthan, a division bench comprising of Justice Sangeeta Lodha and Justice Dinesh Mehta disposed off the matter, on Wednesday, November 28, 2018.
[Civil Suit No. 344/2018]
In November 2018, the Delhi High Court laid down certain guiding principles in respect of liability of e-commerce platforms for trademark
The court laid down twenty six tasks that an intermediary may undertake, ranging from identification of the seller, advertising products on the platform, transporting the product to the purchaser, using trademarks through meta tags, among other things.
The judgment also stated that it has to be seen whether the platform is taking adequate measures to ensure that no unlawful acts are committed by the sellers. Measures include the manner in which the terms of the agreements entered into between the sellers and the platform are enforced, and consequences of violation of the terms, among others.
The Court noted that the elements summarised above would be key to determining whether an online marketplace or an e-commerce website is ‘conspiring, abetting, aiding or inducing’ and is thereby contributing to the sale of counterfeit products on its platform. “When an e-commerce website is involved in or conducts its business in such a manner, which would see the presence of a large number of elements enumerated above, it could be said to cross the line from being an intermediary to an active participant”, the judgment stated.
After considering all the above mentioned factors, the Court concluded that Darveys.com cannot be termed as an intermediary that is entitled to protection under Section 79 of the IT Act.
[W.P. (C) 494 of 2012]
The Supreme Court delivered its much awaited judgment in the Aadhaar case, wherein it upheld the constitutionality of the Aadhaar Act, 2016 barring a few provisions on disclosure of personal information, cognizance of offences and use of the Aadhaar ecosystem by private corporations.
Major Features of the judgment: https://sflc.in/key-highlights-aadhaar-judgment
FAQ on the Aadhaar judgement: https://sflc.in/faqs-aadhaar-judgment
[AIR 2018 SC 578]
In this matter, the Supreme Court of India stated that intermediaries are obliged to keep unlawful content from appearing on their networks. Even after the ruling of the Supreme Court in Shreya Singhal, wherein the court made it clear that intermediaries must not be asked to exercise their personal judgment in determining the legality of content for takedown purposes, the court continues to ask intermediaries to proactively filter their platforms for illegal content. Such decisions by courts contribute to the confusion over the level of due diligence which is to be followed by intermediaries to protect their safe-harbour.
[2018 (1) CTC 506]
This case arose from the unfortunate circumstance of the death of a 19-year old student, allegedly after playing the online game “The Blue Whale Challenge”. This game required players to undertake 50 extreme tasks which eventually lead to them committing suicide. The Madras High Court took suo motu cognizance.
The court, while highlighting Google’s response and noting how difficult it is for law enforcement to get access to crucial information, reprimanded online services stating that they cannot abdicate their duties and responsibilities under law.
The court thus directed the Central Government to take appropriate steps to bring “Over The Top” services into a legal framework obliging them to comply with the laws of India and to provide the required information to the law enforcing agencies - “Methods must to be devised to ensure that those OTTs which could not be brought within such framework are not accessible in India.” The court also requested the government to amend laws and regulations so that Indian laws are applicable to these foreign services and law enforcement can get access to relevant information at crucial points.
[W.P. (C) 494 of 2012]
In this landmark judgement , the Supreme Court of India upheld Right to Privacy as a fundamental right under Article 21 of the Constitution of India. The court laid down a three pronged test to determine permissible invasion of the right to privacy namely, a) existence of a law b) legitimate State interest c) The law should pass the test of proportionality.
FAQs related to the judgment: https://privacy.sflc.in/faq/#right_to_privacy_judgment
SFLC.in's press release: https://sflc.in/press-release-supreme-court-holds-right-privacy-fundamental-right
[AIR 2017 SC 2967]
Constitutional validity of S. 139AA of Income Tax Act was upheld by the Supreme Court which made quoting of Aadhaar number mandatory for filing income tax returns.
Supreme Court's order: https://uidai.gov.in/images/news/Supreme_Courts_Order_in_WP_247_277_304_of_201716062017.pdf
[2017 (69) PTC 551 (Del)]
In January, 2017, a single judge bench of the Delhi High Court, refused to compel intermediaries to screen content that infringes intellectual property laws on an ex-ante basis.
In Kent RO, the court reiterated the specific knowledge requirement as expounded in Myspace, stating that when the attention of the intermediary is brought to infringing products, then they are liable to remove such listings from their websites.
[236 (2017) DLT 478]
This case is important from a copyright perspective as the division bench of the High Court of Delhi in this matter reversed a single judge decision holding Myspace liable for copyright infringement. The division bench held that if intermediaries are tasked with the responsibility of identifying illegal content, it could have a chilling effect on free speech.
In this matter, the court also distinguished the ‘actual knowledge’ requirement from Shreya Singhal to mean ‘specific knowledge’ in matters of copyright infringement i.e. if intermediaries are pointed to specific infringing material by rights holders then they must remove such content, without the necessity of a court order.
[AIR 2015 SC 1523]
Landmark judgment in which the court struck down Section 66A of the Information Technology Act, 2000 for being violative of the freedom of speech and expression under Article 19(1)(a).
On the issue of intermediary liability, the court read down Section 79 of the IT Act and held that the ‘actual knowledge’ requirement for an intermediary to take down content has to be read to mean either an intimation in the form of a court order or on being notified by the government.