On Tuesday, The Supreme Court emphasized the need to find parity between the right to online privacy and the right of the State to identify people who use the web to grow panic and commit crimes.
The concern over the dangers of the dark web expressed by the Bench of Justices Deepak Gupta and Aniruddha Ghose. “Though I do not know how to locate it, I have heard about the dark goings-on in the dark web. It is more dangerous than what happens [in the service web],” Justice Gupta exposed the court’s confusion.
The Bench’s comments were in response to obedience made by Attorney General K.K. Venugopal, appearing for the Tamil Nadu government along with advocate Balaji Srinivasan, about need to link the social media profiles of registered users with their Aadhaar numbers, and if required, have platforms such as Facebook and WhatsApp to share the 12-digit unique identity with law enforcement agencies to help discover crimes.
Mr. Venugopal claimed, “The linking of social media profiles of the users with the Aadhaar is needed to check fake news, defamatory articles, pornographic materials, anti-national and terror contents in the online media.” He pointed out how online game Blue Whale had not long ago terrorized parents and challenged several young lives in India.
He stated the government found it a challenge to follow the ‘originator’ of such online content. The services of social media programs, which were used for advertising such content, was the need of the hour. “We do not have the mechanism to find out the originator… We cannot have people commit crimes.”
Social media platforms represented by the Senior advocates Mukul Rohatgi and Kapil Sibal said they had walked the Supreme Court for the sole purpose of relocating transferring the proceedings pending in High Courts to the apex court for adjudication.
Facebook quarreled that there were four appeals – two in the Madras High Court and one each in the Bombay and the Madhya Pradesh High Courts – on the matter.
Mr. Rohatgi said Mr. Venugopal was unnecessarily investigating into the merits of the case, and he should only claim on the question of transfer. The court, as the highest court in the country, and not the High Courts, should decide the issue that concerned the privacy of an online user. A decision of the top court would embrace the whole span of the country and would consistently apply to all the States.
There was a risk that the different High Courts may reach contradictory decisions on the issue of Aadhaar linkage. It would be better to have the apex court take the final call. He said the Tamil Nadu police were saying that Aadhaar should be used for linking user profiles.
“They cannot tell us how to run our platforms. We have an end to end encryption on WhatsApp, and even we do not have access to the content. He stated that How can we tell them what the Aadhaar number is? We also have to take care of the privacy of the users,”.
A decision of the Indian courts on the issue would have global ramifications, said Mr. Sibal.
Both lawyers identified that a nine-judge Constitution Bench had cited privacy as a fundamental right associated with life and dignity under Article 21 of the Constitution.
‘Why move SC now?’
Mr. Venugopal questioned why social media platforms have decided to approach the Supreme Court at this point of time.
“Why are they coming now? Eighteen hearings have already taken place [in the Madras High Court]. The proceedings are at an advanced stage. Social media platforms had admitted the jurisdiction of the High Courts,” he said, defending the move to transfer the cases from the Madras High Court.
The court finally issued a notice to the Centre and the States on the appeal made by social media platforms for transferring the proceedings in High Courts to the apex court. It further scheduled the next hearing to September 13.
“Hearing before the Madras High Court may go on, but no concrete order be passed till further orders,” said Bench.