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‘Don’t transfer the WhatsApp traceability case,’ Internet Freedom Foundation asks Supreme Court

You are reading it here first: In its counter affidavit to the Supreme Court filed today, Internet Freedom Foundation (IFF), the intervener in the ongoing WhatsApp traceability case, has asked the apex court to not transfer the Rubin and Krishnamurthy petitions to the Supreme Court on two grounds:

  1. The Madras HC has already dismissed the prayer to link Aadhaar with social media accounts
  2. Such a transfer would deprive ordinary Indian internet users of their ability to seek accountability from global Big Tech via high courts

But IFF has maintained in its submission to the Madras HC that the executive and legislative branches of the government should address any policy changes regarding intermediary liability and consequent changes to the platforms. Even so, it does not see this as a “valid reason” to transfer the two Madras HC petitions to the Supreme Court. MediaNama has seen IFF’s counter affidavit.

The organisation has also asked for more time for the Centre to “conduct further stakeholder consultation and revise the Draft Intermediaries Rules” so that only “specific and proportionate restrictions” are imposed on intermediaries.

IFF’s rejects Facebook’s reasons for filing the transfer petition

  1. Facebook’s argument: Four petitions, currently being heard in Madras, Bombay and Jabalpur High Courts, are dealing with a similar question of linking Aadhaar to social media accounts.
    IFF argues that:
    1. The petitions before Madras High Court are no longer dealing with Aadhaar and social media linkage, as per the High Court’s order dated August 21, 2019
    2. Unlike the cases before Bombay and Jabalpur High Courts, the two petitions before Madras HC are at an advanced stage, and “extensive written and oral submissions” have been made by the parties.
  2. Facebook’s argument: It has said that the primary prayer in the Madras HC petitions is subject to the outcome of Maj. Gen. S.G. Vombatkere’s petition challenging the Aadhaar Ordinance.
    IFF argues that the Vombatkere petition has a larger ambit than the ones before Madras HC, as it challenges the constitutional validity of Aadhaar Ordinance itself whereas the use of Aadhaar by private entities has been categorically ruled out by the 2019 Puttuswamy judgement.

IFF was made an intervener in the case on June 27 where it described itself as a “charitable organisation” that focuses on digital rights of the people. IFF’s plea to act as an intervener was supported by the Twitter counsel, Senior Advocate Sajan Poovayya, who opined on IFF’s role and told the court, “We support them in free speech, etc. Indian Media [Internet Freedom] Foundation has brought something to the table.”


Follow our extensive coverage of the WhatsApp traceability case and Facebook’s subsequent transfer petition here.

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