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The Madras High Court yesterday adjourned the hearing in the PIL to navigate ways to curb online crime with the aid of social media companies to October 1. The matter was listed before a Bench of Justices M Sathyanarayanan and N Seshasayee after a portfolio change.
Earlier, the Bench of Justices S Manikumar and Subramonium Prasad, who had also issued notice in the matter last year, had adjourned the case hearing to September 19, in view of a plea made by Facebook to transfer the proceedings to the Supreme Court. This Bench had taken a call to defer the hearing in view of the Supreme Court’s direction that no effective orders could be passed by the High Court in the case until the transfer plea was decided by the Supreme Court. However, the High Court was permitted to continue hearing the matter.
The Supreme Court had been expected to pass orders on the transfer plea on September 13. However, the matter before the Supreme Court was thereafter adjourned to September 24th. In view of this development, the social media companies today urged the new Bench to defer the hearing until the Supreme Court decides on the transfer plea.
The Tamil Nadu government, however, countered the submissions, while arguing for the retainment of the matter in the High Court, given that the Court has extensively heard the matter and was nearing a conclusion in the case.
On Aadhaar Linkage plea
Appearing for the State, Additional Government Pleader E Manoharan submitted today that the transfer plea was advanced in the Supreme Court on the erroneous basis that the High Court was entertaining the original prayer in the PIL to link Aadhaar with social media accounts. It may be noted that allied submissions have also been made in the plea filed by the State of Tamil Nadu before the Supreme Court seeking to restore hearings in the matter to the Madras High Court.
When the Bench questioned the counsel appearing for the social media companies yesterday whether such a prayer is being entertained in the High Court, it was argued that the transfer plea was filed given that the High Court had expanded the scope of the writ petition. In its transfer plea, Facebook had raised concern that the case involves questions of privacy that would be better suited to be considered by the Apex Court.
It may also be noted that the High Court Bench had made it clear from the outset that no prayer for Aadhaar linkage would be entertained. Pertinently, the original petitioner Anthony Clement Rubin has also filed an application to amend his writ petition, so that his initial plea for Aadhaar linkage may be modified.
Instead of Aadhaar, Rubin has now sought for the linking of any “government approved or authorized identities” for the purpose of authentication while setting up e-mail or user accounts on social media platforms such as Facebook, Instagram, YouTube and Twitter, and in the utility accounts like Paytm, Uber, Ola, Gmail, Yahoo and Hotmail.
In the meanwhile, the Supreme Court on September 13 sought a response from the Central government on whether it is contemplating formulation of any guidelines regarding linking of social media with Aadhaar and traceability of WhatsApp messages.
Social media companies must take responsibility for potential misuse
Before adjourning the hearing, the High Court Bench also had occasion to reiterate generic concerns concerning the possible misuse of social media. During the course of hearing, the Court orally observed,
“Accessing such information which causes unrest, fake news, exaggerated news, inciting opinion…No body knows from where it comes and nobody wants to take responsibility…There will be hundreds of people who will blindly forward it…. What is the psychological impact it will have on individuals?
All these law and order situations taking place locally need not be from here but maybe [based on information obtained] remotely… Therefore, it is all the more important… whatever checks and balances [are being put in place]…Are you ultimately going to do service for those country or are you [going to act for your]...business…?”
The Bench remarked that social media companies cannot simply claim innocence and decline to take any responsibility for such misuse. It observed that the platform provider must anticipate the consequences such misuse could lead to as well. The Court further opined that the principle of strict liability could be applied, observing,
“…if you are going to provide a platform that could be misused, better you take responsibility.”
The Court also added that,
“The privacy doctrine cannot outweight the larger interests to which the society is entitled to.”
While addressing the Court’s concerns in this regard, it was submitted that the Centre is in the midst of framing draft rules so that such issues may be resolved. On Friday, the central government standing counsel also informed the Court that these draft rules were ready and in the process of being notified. After hearing the submissions, the Court eventually decided to defer the hearing further to October 1.
In the meanwhile, it was also mentioned that Twitter USA be deleted from the array of parties, given that the relevant party for the matter at hand was only the Twitter International company.
Senior Advocates Satish Parasaran, NL Rajah and MS Krishnan appeared yesterday for Facebook, WhatsApp and Twitter respectively.
[Read the order]