In this PIL, the petitioner sought directions to block Telegram and regulate social media apps. The court examined respondent submissions regarding the 2021 IT Rules and the availability of Grievance Officer mechanisms before disposing of the matter.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 16TH DAY OF MARCH 2023 / 25TH PHALGUNA, 1944
WP(C) NO. 26210 OF 2019
PETITIONER:
ATHENA SOLOMON.K,AGED 23 YEARS D/O. TOM THOMAS, KADAPRAYIL HOUSE, THAMBALAMANNA P.O, THIRUVAMBADY, KOZHIKODE DISTRICT, PIN-673 603
BY ADV MANAS P HAMEED
RESPONDENTS:
7 CYBERDOME KERALA POLICE,REPRESENTED BY ITS NODAL OFFICER, POLICE HEADQUARTERS, TRIVANDRUM-695 010 SRI.JAISHANKAR V.NAIR, CGC SRI.P.NARAYANAN, SENIOR GOVT. PLEADER SRI.K.R.RAJKUMAR, C.G.C. SMT.MINI GOPINATH, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C)26210/2019
:2:
JUDGMENT
S.Manikumar, C.J
Reliefs sought for in this Public Interest Litigation are as
follows:-
“I. Issue a writ of mandamus or any other writ or direction in the nature thereof directing the respondent authorities to discharge their executive, statutory and all other obligations to take steps to block the access of the internet based mobile/desktop application named 'Telegram' in India.
II. Issue a writ of mandamus or any other writ or direction in the nature thereof directing the respondent authorities to discharge their executive, statutory and all other obligations to ensure that, all the internet based mobile/desktop applications are operating in India only by complying with the existing laws of the Country.”
follows:-
Petitioner, a public spirited person, is aggrieved by the circulation of inappropriate obscene and vulgar sexual contents featuring women and children especially pornography involving children, promoted through the internet based mobile and desktop
W.P(C)26210/2019
:3:
application 'Telegram'. According to her, 'Telegram' is also used for promoting international terrorism as well as for creating civil disruptions and that it has no nodal officer or a registered office in India and it is operating without license from any authorities and the investigating agencies are unable to initiate proper investigation or to trace out the culprits since it provides a user not to disclose his identity. Hence, this writ petition is filed.
(j) ‘grievance’ includes any complaint, whether regarding any content, any duties of an intermediary or publisher under the Act, or other matter pertaining to the computer resource of an intermediary or publisher, as the case may be.
W.P(C)26210/2019
:4:
On the other hand, Mr.Manas P.Hameed, learned counsel for the petitioner, submitted that no such officer is appointed in India.
Post after one week.”
V Nair, learned Central Government Counsel, has filed a statement.
W.P(C)26210/2019
:5:
on behalf respondent No.1 are reproduced:
“1. This statement is filed based on the instructions received from the Scientist E, Electronics Niketan, Ministry of Electronics and Information Technology (MeitY), New Delhi and as directed by this Court on 17.02.2023.This statement is filed without prejudice to the Rights of the 1st Respondent to file an additional Statement/Counter Affidavit in the matter.
W.P(C)26210/2019
:6:
computer resource by any person in the language of his choice and ensure compliance of the same; observe due diligence by publishing on its website, mobile-based application, or both, as the case may be, the rules and regulations, privacy policy and user agreement for access or usage of its computer resource by any person.
i. belongs to another person and to which the user does not have any right;
ii. is obscene, pornographic, pedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence;
iii. is harmful to a child;
iv. infringes any patent, trademark, copyright or other proprietary rights;
v. deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature;
vi. impersonates another person;
vii. threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence, or prevents investigation of any offence, or is insulting other
W.P(C)26210/2019
:7:
nation;
viii. contains a software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource; ix. violates any law for the time being in force.
W.P(C)26210/2019
:8:
W.P(C)26210/2019
:9:
requisitions; and
Appoint a Resident Grievance Officer responsible for the functions referred to in sub-rule (2) of rule 3.
W.P(C)26210/2019
:10:
grievance officer of Telegram are available in the URL (https://telegram.org/faq) In the aforesaid premises and in the interest of Justice, equity and good conscience, it is most respectfully prayed that this Hon’ble Court may be pleased to accept the above submissions as part of the records.”
respondent No.1, as hereunder:
“The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
In exercise of the powers conferred by sub-section (1), clauses (z) and (zg) of sub-section (2) of section 87 of the Information Technology Act, 2000 (21 of 2000), and in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011, except as respect things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely:—
Rule 2(1)(j): ‘grievance’ includes any complaint, whether regarding any content, any duties of an intermediary or publisher under the Act, or other matters pertaining to the computer resource of an intermediary or publisher, as the case may be.
Rule 2(1)(k): ‘Grievance Officer’ means an officer appointed by the intermediary or the publisher, as the case may be, for the purposes of these rules.
Rule 2(1)(v): ‘significant social media intermediary’ means a social media intermediary having number of registered users in India above such threshold as notified by the Central Government;
W.P(C)26210/2019
:11:
Rule 3. (1) Due diligence by an intermediary: An intermediary, including social media intermediary and significant social media intermediary, shall observe the following due diligence while discharging its duties, namely:—
(a) the intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the rules and regulations, privacy policy and user agreement in English or any language specified in the Eighth Schedule to the Constitution for access or usage of its computer resource by any person in the language of his choice and ensure compliance of the same;
(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,—
(ii) is obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence;
(iii) is harmful to child;
(iv) infringes any patent, trademark, copyright or other proprietary rights;
(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in
W.P(C)26210/2019
:12:
nature;
(vi) impersonates another person;
(vii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence, or prevents investigation of any offence, or is insulting other nation;
(viii) contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource; (ix) violates any law for the time being in force;
(c) an intermediary shall periodically inform its users, at least once every year, that in case of non-compliance with rules and regulations, privacy policy or user agreement for access or usage of the computer resource of such intermediary, it has the right to terminate the access or usage rights of the users to the computer resource immediately or remove non-compliant information or both, as the case may be;
Rule 3(2): Grievance redressal mechanism of intermediary: (a) The intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall
Provided that the complaint in the nature of request for removal of information or communication link relating to clause (b) of sub-rule
W.P(C)26210/2019
:13:
(1) of rule 3, except sub-clauses (i), (iv) and (ix), shall be acted upon as expeditiously as possible and shall be resolved within seventy-two hours of such reporting;
Provided further that appropriate safeguards may be developed by the intermediary to avoid any misuse by users;
(ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.
(b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual, take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it:
Rule 4. Additional due diligence to be observed by significant social media intermediary.—(1) In addition to the due diligence observed under rule 3, a significant social media intermediary shall, within three months from the date of notification of the threshold under clause (v) of sub-rule (1) of rule 2, observe the following additional due diligence while discharging its duties, namely:—
(a) appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and rules made thereunder and shall be liable in any proceedings relating to any relevant third-party information, data or communication link made available
W.P(C)26210/2019
:14:
or hosted by that intermediary where he fails to ensure that such intermediary observes due diligence while discharging its duties under the Act and rules made thereunder:
Provided that no liability under the Act or rules made thereunder may be imposed on such significant social media intermediary without being given an opportunity of being heard.
Explanation.—For the purposes of this clause “Chief Compliance Officer” means a key managerial personnel or such other senior employee of a significant social media intermediary who is resident in India;
(b) appoint a nodal contact person for 24x7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law or rules made thereunder.
Explanation.—For the purposes of this clause “nodal contact person” means the employee of a significant social media intermediary, other than the Chief Compliance Officer, who is resident in India; (c) appoint a Resident Grievance Officer, who shall, subject to clause (b), be responsible for the functions referred to in sub-rule (2) of rule 3.
Explanation.—For the purposes of this clause, “Resident Grievance Officer” means the employee of a significant social media intermediary, who is resident in India;”
filed by Mr.Jaishankar V. Nair, learned Central Government Counsel, Mr.Manas P. Hameed, learned counsel for the petitioner, submitted that the petitioner would approach the Grievance Officer appointed, as
extracted (supra).
W.P(C)26210/2019
:15:
learned counsel for the petitioner, is recorded.
Accordingly, writ petition is disposed of.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
spc/
W.P(C)26210/2019
:16:
APPENDIX OF WP(C) 26210/2019
| PETITION | ER EXHI | BITS |
|---|---|---|
| EXHIBIT | P1 | TRUE COPY OF NEWS REPORT PUBLISHED BY THE NEW INDIAN EXPRESS ON 01.04.2019 REGARDING ARREST OF 11 MEN WHO PROMOTED CHILD PORNOGRAPHY THROUGH INTERNET. |
| EXHIBIT | P2 | TRUE COPY OF NEWS REPORT DATED 23.12.2017 PUBLISHED BY NEWS18, REGARDING ARREST OF ADMINISTRATOR OF A PAEDOPHILE GROUP IN TELEGRAM. |
| EXHIBIT | P3 | TRUE TRANSCRIPT OF NEWS REPORT PUBLISHED INDIA TODAY DATED 08.03.2019 REGARDING THE SUICIDE OF A GIRL FROM PULWAMA OF JAMMU. |
| EXHIBIT | P4 | TRUE COPY OF NEWS REPORT PUBLISHED BY HINDUSTAN TIMES, DATED 02.05.2019 REGARDING THE SUICIDE OF A MINOR GIRL FROM NABARANGPUR DISTRICT OF ODISHA. |
| EXHIBIT | P5 | TRUE COPY OF NEWS REPORT OF ODISHA TIMES, DATED 19.07.2019 REGARDING THE SUICIDE OF A MINOR GIRL FROM KENDRAPARA DISTRICT OF ODISHA. |
| EXHIBIT | P6 | TRUE COPY OF STATISTICS BY A WEBSITE TELEGRAM ANALYTICS SHOWING THE VIEWS OF A CHANNEL NAMED DESI AUNTY WHICH FOCUSES ON THE VIDEOS OF SOUTH INDIAN WOMEN. |
| EXHIBIT | P7 | TRUE COPY OF STATISTICS BY A WEBSITE TELEGRAM ANALYTICS SHOWING THE VIEWS OF A CHANNEL NAMED SPYCAMX WHICH FOCUSES ON THE VIDEOS CAPTURED BY INSTALLING HIDDEN CAMERAS. |
| EXHIBIT | P8 | TRUE COPY OF THE SCREENSHOT OF WEBSITE TELEGRAM ANALYTICS SHOWING THE VIEWS OF A CHANNEL NAMED MALLUVEDIS WHICH FOCUSES ON THE VIDEOS OF KERALA WOMEN. |
| EXHIBIT | P9 | TRUE COPY OF SCREEN SNAP OF TELEGRAM CHANNEL NAMED TEENVDO PROMOTING SEXUAL CONTENTS INVOLVING CHILDREN. |
| EXHIBIT | P10 | TRUE TRANSCRIPT OF REPORT PUBLISHED THE QUINT DATED 20.02.2019 REGARDING HOW |
W.P(C)26210/2019
:17:
TERRORIST COMMUNICATE USING DARK WEB AND ENCRYPTION TECHNOLOGY. EXHIBIT P11 TRUE TRANSCRIPT OF NEWS REPORT DATED 13.08.2019 PUBLISHED BY INDIA TODAY ON ISIS USES TELEGRAM TO SPREAD HATE MESSAGES AGAINST INDIA. EXHIBIT P12 TRUE TRANSCRIPT OF REPORT DATED 16.04.2018 PUBLISHED BY REUTERS REGARDING THE BLOCKING OF TELEGRAM BY RUSSIAN COURT. EXHIBIT P13 TRUE TRANSCRIPT OF REPORT DATED 16.04.2018 PUBLISHED BY REUTERS REGARDING THE BAN OF TELEGRAM IN INDONESIA. Exhibit P14 TRUE COPY OF REPRESENTATION DATED 18.8.2020 FILED BY THE PETITIONER BEFORE THE SECRETARY, MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY Exhibit P14a TRUE COPY OF SCREENSHOT SHOWING EMAIL SENT BY THE PETITIONER TO THE EMAIL ADDRESS OF THE SECRETARY, MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY ON 19.8.2020 RESPONDENT EXHIBITS EXHIBIT R1(A) RELEVANT PORTION OF INFORMATION TECHNOLOGY (PROCEDURE AND SAFERUARDS FOR BLOCKING FOR ACCESS OF INFORMATION FOR PUBLIC) RULES 2009. EXHIBIT R1(B) LIST OF NODAL OFFICERS. EXHIBIT R1(C) INTERMEDIARY GUIDELINES 2011.
2 issues framed by the court
Whether the petitioner is entitled to pendente lite directions to block access to the application Telegram.
Whether the legal framework under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 suffices for grievance redressal.
2 provisions across 1 enactments
ATHENA SOLOMON.K
UNION OF INDIA
GOVERNMENT OF KERALA
DEPARTMENT OF TELECOMMUNICATIONS
TELECOM REGULATORY AUTHORITY OF INDIA LTD.
THE OFFICIAL IN -CHARGE, COMPUTER EMERGENCY RESPONSE TEAM
S.MANIKUMAR
MURALI PURUSHOTHAMAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
