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Court Watch: The Biggest Indian Tech Policy Cases to Keep An Eye On In 2023

We round up the year’s most important tech policy cases you should keep an eye on, and, more importantly, the people and principles they impact.

If you’re curious about the future of Indian tech policy, you have to go to court. In the absence of cohesive IT laws, that’s where top companies and government departments are slogging it out on hot-topic tech policy issues—privacy violations, surveillance, content moderation, copyright infringement, and online censorship.

We round up the year’s most important tech policy cases you should keep an eye on, and, more importantly, the people and principles they impact.

Got a case you think we should cover? Did a recent tech policy judgment impact your business? What more can we do to make our legal coverage less Delhi-centric? Send in your inputs to aarathi@medianama.com

Do India’s platform regulation policies harm privacy, free speech, and business interests?

Many people thought the IT Rules, 2021—which govern how online platforms operate in India—lacked much-needed constitutional spirit. Some even went to court saying so—the Rules remain the subject of multiple challenges bunched together at the Supreme Court in Union of India v Bhakta Tripathy.

Why it matters: The Court has to decide if the IT Rules really do harm free speech, privacy, and business interests online, as multiple people have alleged.

Case number: T.P. (C) 1147-1152/2021

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Next hearing: 16/01/2023*

Reading material: Click here for MediaNama‘s archive on the topsy-turvy journey of the IT Rules in India—amendments and all. SFLC captures some developments in this case at the top court (documents included!).

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Is WhatsApp violating the privacy of its users?

WhatsApp updated its privacy policy in 2016, easing its sharing of WhatsApp user data with companies under the erstwhile Facebook banner. This sharing helps the Facebook group’s commercial activities which hinge on targeting ads to users based on the data they generate. Whether such data sharing violates a user’s right to privacy or not is one of the many questions at the heart of Karmanya Singh Sareen & Anr v Union of India & Ors, currently being heard at the Supreme Court.

Why it matters: Sneaky data sharing can be avoided by simply allowing users to “consent” or “opt-in” to commercial profiling. This strengthens our individual control over protecting our privacy. Interestingly, India’s new draft privacy law also introduces the concept of “deemed” consent—which is where users are presumed to have consented to other data processing apart from what they originally consented to. In effect, this dilutes the need for a user to explicitly consent to further data sharing and profiling. So, does this affect the arguments in this case?

An interesting aside: Last September, Solicitor General Tushar Mehta told the Court that “the Parliament is considering on bringing in a new law which should address the concerns of the parties (..) the policy of the Government of India is that the users of all the intermediaries in India should not suffer discrimination in comparison to the users of these platforms anywhere else in the world”. Perhaps this was a foreshadowing to the then yet-to-be-notified IT Rules amendments mentioned earlier, or the draft privacy law itself.

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Case number: SLP(C) 804/2017

Next hearing: Final hearings on 17/01/2023

Reading material: Supreme Court Observer rounds up the twists and turns in this case—with key documents included. Here’s MediaNama‘s report from 2017 on the petition. A memorable quote from our Editor Nikhil Pahwa on WhatsApp’s policies back then: “there’s an opportunity for a privacy law in India, so that global companies are forced to conform to our privacy laws, instead of forcing Indians to conform to their privacy terms”. Six years down the line, here’s how that draft law ended up approaching privacy and consent.

Did the Indian government really use Pegasus to spy on its own citizens?

That’s one of many questions the Supreme Court is faced with in Manohar Lal Sharma v Union of India.

Why it matters: While proceedings at the top court move at a glacial pace, this case will help determine when and how the government can “reasonably” intrude on our privacy. It may also open the door for much-needed reforms in surveillance regulation in India which is outdated at best and non-existent at worst.

Case number: WP (Crl) 314/2021

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Next hearing: 20/01/2023*

Reading material: Click here to read about what went down in the last hearing, way back in August last year. Click here for MediaNama‘s full archive on the Pegasus stand-off between the Indian government and the civil society at the Supreme Court.

Should we be certain about the CERT-In rules?

Last April, the Indian Computer Emergency Response Team (CERT-In) issued new directives on reporting cyber security incidents, and maintaining customer details and logs, among other mandates. They were criticised for violating privacy and free speech rights, and for affecting the ease of doing business for companies. Some Virtual Private Network (VPN) companies exited India as a result. The India-based SnTHostings chose to challenge the directive at the Delhi High Court instead.

Why it matters: In SnTHostings v Union of India, the Pune-based SnTHostings argues that “the directions are in violation of the right to privacy and the right to do business, and are beyond the scope of the powers conferred to CERT-In”. This comes after wide criticism of the rules from industry bodies, tech companies, and civil society too.

Case number: WP (C) 13997/2022

Next hearing: 09/03/2023

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Reading material: We spoke to the SnTHostings owner—and the lawyers representing them—to find out why CERT-In may need to rethink its orders. The Indian government, however, thinks the directive is rather necessary in these days of heightened “nefarious activities” online. Something worth remembering as other companies quit India: “The petitioner in the matter is a small Indian service provider. His whole life is here, his entire business, his family, everything is here. Where will he go? So he has no option but to fight it out.”

When is it okay to block an account on Twitter?

A few years ago, Twitter blocked lawyer Sanjay Hegde’s account for a questionable header image—which displayed a lone man standing with his hands by his side in a crowd performing the Nazi salute. The picture has now become somewhat famous for depicting dissent, but Twitter allegedly decided that it constituted “hateful imagery”. Hegde’s account was blocked (and restored) in 2019. In Sanjay R. Hegde v Ministry of Electronics and Information Technology, he went to the Delhi High Court to ask the government to frame guidelines that prevent arbitrary platform ‘censorship’ online, among other things.

Why it matters: “Calling the suspension of his account illegal and arbitrary in the petition, Hegde said that the move was contrary to Twitter’s own terms of use,” we reported back in 2020. Also, the “state has a positive obligation to ensure that the right to free speech is not impeded due to the conduct of private parties,” Hegde added in his petition.

Case number: WP (C) 13275/2019

Next hearing: 16/02/2023

Reading material: Here’s MediaNama‘s coverage of the Hegde case back in 2020 and here’s a link to his original petition. News18 (briefly) profiles Hegde here—he has “appeared for citizens excluded from the National Register of Citizens (NRC), in a habeas corpus case on Kashmir, in cases related to mob-lynching, and in the recent Aarey forest case in Mumbai”.

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Is Twitter tweeting truth to power?

Twitter thinks some of the Indian government’s orders to take down allegedly problematic tweets aren’t kosher—last year, it took the government to court for stifling the free speech rights of its users, among other allegations. The government told Twitter to stay in its lane, adding that determining free speech online simply wasn’t the microblogging platform’s job. Upcoming hearings at the Karnataka High Court will finally see the Indian government defend its content blocking under Section 69A of the Information and Technology Act, 2000 (IT Act).

Why it matters: The hearings will clarify the government’s understanding of an online platform’s responsibilities—and whether it really considers protecting fundamental rights to be one of them. Also remember: the recently amended IT Rules state that platforms have to respect the constitutional rights of Indian citizens. The hearings may answer whether defending them, as Twitter has in this case, falls under this responsibility too.

Case number: WP 13710/2022

Next hearing: 09/01/2023

Reading material: Click here for our court reports from the case—and here for Pranesh Prakash’s thoughts on why the current use of Section 69A isn’t exactly above the line. We’ve also been covering the shortcomings of Section 69A since way back when: here’s our editor’s take from 2015, published just after it survived a fraught constitutional challenge.

In comes the Internet Freedom Foundation (IFF): Apar Gupta, IFF’s head, also filed a case challenging the Ministry of Home Affairs’ (MHA) refusal to disclose information on the “scope and scale of e-surveillance” by it under Section 69 of the IT Act since December 2018. Filed at the Delhi High Court last year, the next hearing in Apar Gupta v Central Public Information Officer, Ministry of Home Affairs will take place on March 21st, 2023.

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Is there a ‘right’ way for the police to seize your phone?

Amazon, a group of academics, and a gaggle of media professionals enter the Supreme Court. What happens next?

They file separate cases challenging how Indian law enforcement agencies seize electronic devices.

Why it matters: Among other things, the three cases ask for better ringfencing of the police’s wide “search and seize” powers—which allow them to take away phones, laptops, hard drives and other devices while conducting an investigation.

The academics say that there’s a serious chance their academic work could be damaged or lost if their devices are seized. The media professionals are also concerned that the accused in an investigation might be asked to share a mobile or laptop password to unlock the device. This potentially forces them to share information that might hurt their own interests—which is a violation of fundamental rights in India. Amazon, under the scanner in a foreign exchange investigation, wants its confidential data to be protected from law enforcement. The latter is allegedly compelling employees “to part with sensitive and confidential data stored on their laptops and mobile phones”.

Case information: The three separate cases are:

  • The academics’ petition: Ram Ramaswamy & Ors v Union of India & Ors [WP (Crl) 138/2021]
    • Next hearing:  To be listed in the week of 07/02/2023.
  • The media professionals’ petition: Foundation for Media Professionals v Union of India [WP (Crl) 395/2022]
  • Amazon’s petition: Amazon Seller Services Private Limited & ANR v The Directorate of Enforcement & ORS [WP (C) 1081/2022]
    • Next hearing: A December 9th Supreme Court order says that this case will be ‘tagged’ or heard with the media professionals’ case.

Reading material: Read our coverage of the cases filed by the media professionals and academics here. The Economic Times has more on the Amazon petition. An op-ed by Delhi lawyer Sarim Naved in The Wire argues that arbitrary search and seizure of devices could “turn corporate investors away from India”.

Why is Telegram embroiled in so many copyright infringement cases?

Books, newspapers, and movies are circulated widely on the encrypted messaging app, Telegram. The problem is that copyright holders aren’t happy about it—and they want Telegram to take down their protected material allegedly floating around Telegram’s channels.

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Why it matters: We identified around five similar cases at the Delhi High Court on this issue—all are pending, but they’re already changing and challenging the “safety” of encrypted messaging apps. In response to strong court orders in one case, Telegram has handed over data on the alleged users circulating the copyrighted material to the Delhi High Court.

Case information: We’ve identified at least five similar copyright cases at the Delhi High Court:

  • Made Easy Education Private Limited v Telegram FZ LLC ANR. [CS (COMM) 392/2021]
  • VDK Eduventures Private Limited v Telegram FZ LLC ANR.[CS (COMM) 530/2020]
    • Next hearing: 24/01/2023 for marking of exhibits.
  • Neetu Singh v Telegram FZ LLC [CS (COMM) 282/2020]
    • Next important dates: To be listed before the Joint Registrar on 09/01/2023, and before the Court for case management on 14/02/2023.
  • M/s Allen Career Institute v Telegram FZ-LLC & ORS. [CS (COMM) 505/2020]
    • Next important date: To be renotified on 23/03/2023.
  • Jagran Prakashan Limited v Telegram FZ LLC & ORS. [CS (COMM) 146/2020]

Don’t forget Sci-hub: Academic publishers are also challenging pirate sites Sci-Hub, LibGen, and Z-Library at various courts for copyright violations.

Reading material: Here’s our coverage of Telegram, LibGen and Sci-hub‘s tribulations in India’s courts. Here’s our archive on the stand-off between copyright and access to information online. Here’s a quote worth remembering on the debate from our work a few months ago—”Today, most of the ordinary people you encounter are only able to access copyrighted works online—tools that they need for a full and complete life—by acts of piracy or copyright infringement. That itself demonstrates the serious problems of the current regime [and who it favours]: the fact that you and I perhaps don’t know anybody that lives their life in complete compliance with copyright law”.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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*This date is tentative and has been auto-generated by the Supreme Court of India. It may be revised. | This post was updated at 9:00 am on 23/1/2023 to correct a typographical error. 

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Written By

I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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