The Supreme Court on Tuesday stressed the need to find a balance between the right to online privacy and the right of the State to detect people who use the web to spread panic and commit crimes.
A Bench of Justices Deepak Gupta and Aniruddha Ghose expressed concern over the dangers of the dark web. “Though I do not know how to access it, I have heard about the dark goings-on in the dark web. It is worse than what happens [in the service web],” Justice Gupta expressed the court's consternation.
The Bench’s comments were in response to submissions 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 detect crimes.
Mr. Venugopal argued, “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 referred to how online game Blue Whale had not long ago terrorised parents and claimed several young lives in India.
He said the government found it a challenge to trace the 'originator' of such online content. The services of social media platforms, which were used to circulate 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.”
Senior advocates Mukul Rohatgi and Kapil Sibal, representing social media platforms, said they had moved the Supreme Court for the sole purpose of transferring the proceedings pending in High Courts to the apex court for adjudication.
Facebook contended that there were four petitions - two in the Madras High Court and one each in the Bombay and the Madhya Pradesh High Courts - on the issue.
Mr. Rohatgi said Mr. Venugopal was unnecessarily delving into the merits of the case and he should only argue on the question of transfer. The court, as the highest court in the country, and not the High Courts, should decide the issue that affected the privacy of an online user. A decision of the top court would cover the entire span of the country and would uniformly apply to all the States.
There was a risk that the different High Courts may arrive at conflicting decisions on the issue of Aadhaar linkage. It would be better to have the apex court take the final call. The Tamil Nadu police were saying that Aadhaar should be used for linking user profiles, he said.
“They cannot tell us how to run our platforms. We have end to end encryption on WhatsApp and even we do not have access to the content. How can we tell them what is the Aadhaar number? We also have to take care of the privacy of the users,” he stated.
Mr. Sibal said a decision of the Indian courts on the issue would have global ramifications.
Both lawyers pointed out that a nine-judge Constitution Bench had declared privacy as a fundamental right associated with life and dignity under Article 21 of the Constitution.
‘Why move SC now?’
Mr. Venugopal asked 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. They [social media platforms] had accepted the jurisdiction of the High Courts,” he said, opposing the move to transfer the cases from the Madras High Court.
The court finally issued notice to the Centre and the States on the plea 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.
The Bench said the “hearing before the Madras High Court may go on but no effective order be passed till further orders.”