The Central government apprised the Kerala High Court that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 provides that the intermediary shall publish the name and contact details of the Grievance Officer as well as the mechanism by which a user or victim may complain against violation of the provisions of the said rules.
The Division Bench of Chief Justice S. Manikumar and Justice Murali Purushothaman disposed of a Public Interest Litigation (PIL) seeking following relief:-
“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.” 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 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, the petition is filed.
Pursuant to the Court’s order dated 17.02.2023, Jaishankar V Nair, Central Government Counsel, has filed a statement dated 15.03.2023 , which states-
-that the Central Government has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021). It supersedes the earlier Information Technology (Intermediaries Guidelines) Rules, 2011 and has been last amended on 28.10.2022.
– that, Rule 3 of the said “IT Rules, 2021” provides that an intermediary shall observe due diligence specified in the rule while discharging its duties.
– that, as per clause (a) of subrule (1) of rule 3 of the IT Rules, 2021, an 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; 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.
– That as per clause (b) of sub-rule (1) of rule 3 ibid., an intermediary 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, —
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 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.
– that if the information alleged by the petitioner falls under any of the said sub-clauses, the petitioner may approach the Grievance Officer of the intermediary platform seeking the removal of such information.
– that as per clause (c) of sub-rule (1) of rule 3 ibid., 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 noncompliant information or both, as the case may be.
– that as per clause (a) of sub-rule (2) of rule 3 ibid., provides that the intermediary shall publish the name and contact details of the Grievance Officer as well as the mechanism by which a user or victim may complain against violation of the provisions of the IT Rules, 2021. It further provides that the Grievance Officer shall acknowledge the complaint within 24 hours, dispose of the same within 15 days of its receipt, and receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority, or a court of competent jurisdiction.
– that clause (b) of sub-rule (2) of rule 3 ibid. provides that the intermediary shall, within 24 hours from the receipt of a complaint under the subrule, in relation to any content which is prima facie in the nature of any material which exposes the private area of the complainant, shows the complainant in full or partial nudity or shows or depicts him/her in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of the complainant, take all reasonable and practicable measures to remove or disable access to such content hosted, stored, published or transmitted by it.
– that clause (v) of sub-rule (1) of rule 2 ibid. defines “significant social media intermediary” (SSMI) to mean a social media intermediary having a number of registered users in India above such threshold as notified by the Central Government. The Central Government, vide its notification dated 26.2.2021 issued under the said clause (v) of sub-rule (1) of rule 2 ibid, has notified 50 lakh users as the threshold for an intermediary to qualify as an SSMI. Rule 4 ibid. provides that in addition to the due diligence observed under rule 3, an SSMI shall observe the additional due diligence specified in rule 4 while discharging its duties.
– that sub-rules (1) to (3) of rule 4 ibid. provide that an SSMI shall observe, inter alia, the following additional due diligence while discharging its duties:
(a) Appoint a Chief Compliance Officer;
(b) Appoint a nodal contact person to coordinate with law enforcement agencies 24×7 on their orders or requisitions; and Appoint a Resident Grievance Officer responsible for the functions referred to in sub-rule (2) of rule 3.
– that apart from making a complaint to the intermediary-appointed Grievance Officer, the petitioner can also lodge a complaint with the law enforcement agency or the cybercrime cell having jurisdiction in respect of any cognizable offence committed under IPC or any other applicable law. The petitioner can also report a cybercrime on the Cybercrime Reporting Portal (www.cybercrime.gov.in) launched by the Ministry of Home Affairs, or on the associated toll-free helpline number 1930. Complainants can also report anonymously on the portal if they do not want to disclose their identity. Through the portal, the National Crime Records Bureau too is associated with the work of cybercrime prevention against women and children.
– that as stated above, provision exists under law for the aggrieved person to pursue removal of content broadly, the following options are available to an individual aggrieved by the hosting of unlawful content on an intermediary platform for pursuing removal of the same or action against the intermediary: (a) File a complaint to the Grievance Officer of the intermediary platform; and/or (b) Lodge a complaint with the law enforcement agency having jurisdiction in respect of a cognizable offence or on the Cybercrime Reporting Portal (www.cybercrime.gov.inor toll-free helpline 1930); and/or (c) Approach a competent court of law for the relief(s) sought.
– that the contact details of the 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.
After going through the contentions made in the statement , Manas P. Hameed, counsel for the petitioner, submitted that the petitioner would approach the Grievance Officer appointed, as extracted (supra).