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NEW SOCIAL MEDIA CODE AND THE BIRTH OF A NEW REGIME OF INTERMEDIARY LIABILITY

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On 26 February 2021, the Ministry of Electronics and Information Technology (MeITY) proposed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 for social media platforms, OTT services and digital media. The Code is a reinforcement of the Information Technology (Intermediaries Guidelines) Rules, 2018 wherein the regulation of social media companies has been strengthened making them more accountable for content on their platforms. The most debated provision of the new code has been the categorisation of media intermediaries and the birth of the ‘responsibility-liability’ regime of intermediaries.

The proposition of intermediary liability is not new, in the past, a scandal involving the sale of a pornographic clip on Baazee.com (now ebay.in) and the subsequent arrest of the company’s CEO led to the creation of a committee to re-evaluate the Information Technology Act. The committee recommended that intermediaries must do their ‘due diligence’ in order to receive immunity, which was accepted by the government. Also, the Supreme Court has in Shreya Singhal v. Union of India and My Space Inc. v. Super Cassettes Industries Ltd., acknowledged the concept of actual and specific knowledge and observed that intermediaries can be held liable if they have actual or specific knowledge of the existence of infringing content on their website from content owners and despite such notice, they do not take down the content. For these reasons, the Information Technology (Intermediary Guidelines) Rules, 2011 was introduced to create more accountability on the part of intermediaries.

In 2018, the intermediary liability rules were reconsidered and it was triggered by the misuse of social media by criminals and anti-national elements. Digital platforms have failed to proactively deal with cases that led to misuse of data and free speech majorly owing to their enormous size. There is harmful content on various platforms from fake news to child pornography. More recently, Twitter Inc. permanently banned former U.S. President Donald Trump’s account alleging that he had been breaking the rules against glorifying violence, manipulating media and sharing unsubstantiated information regarding the U.S. elections.

The need for stringent laws with regards to the liability of social media platforms in India escalated after the incident of Farmer’s protest taking a violent turn on 26th January 2021. The MeITY directed Twitter to take down accounts that used incendiary hashtags during the violence however, the company did not comply with it and the ministry said that the platform had to adhere to the authority’s directions and non-compliance will lead to criminal charges against the platform.

The Information Technology Act, 2000 along with the Intermediaries Guidelines, 2011 provided a safe harbour for the Intermediaries in India however, a need has been felt for content curation and also holding intermediaries liable for content published on social media platforms. The term “intermediary” has been defined under Section 2(w) of the IT Act as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, web-housing service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.”

The role of an intermediary is not to create information, but to receive, store and transmit it. The safe harbour protection under the IT Act applies only to “passive intermediaries”. The Delhi High Court in Christian Louboutin SAS v. Nakul Bajaj and Ors. held that as long as intermediaries are mere conduits or passive transmitters of the records or of the information, they continue to be intermediaries and they should not be “active participant”.

The Information Technology Act, 2000 is the primary legislation dealing with the liability of intermediaries for content generated by third parties. The act was amended in 2008 to include safe harbour under section 79 of the act and also to amend the definition of intermediaries. Thereafter, the intermediary guidelines, 2011 were introduced to incorporate due diligence in pursuance of the rules stated therein, in order to claim safe harbour protection under the IT Act. The IT Act and the Intermediaries guidelines, 2011 were to be read in consonance with each other.

The intermediaries do not create the content available on their platform, they merely act as a bridge between the content creators and consumers. The traditional point of law was based on the nation that intermediaries cannot be held liable and accountable for everything posted by any third party considering the vast amount of data produced every day. Another point of technical concern was the impossibility to track every act that qualifies as harmful or controversial.

The Supreme Court in Shreya Singhal case has also observed that “it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.” Similarly, in the case of Kent Ro Systems Ltd & Anr vs Amit Kotak & Ors, the Court observed, “to require an intermediary to do screening would be an unreasonable interference with the rights of the intermediary to carry on its business.”

The new code provides that intermediaries will have to proactively monitor and filter their users’ content through appropriate mechanisms, and be able to trace the originator of questionable content to avoid liability for users’ actions. It also distinguishes between a significant and a regular social media intermediary as per their user traffic. Social media companies will have to establish a proper Grievance Redressal Mechanism to deal with user complaints. Further, the platforms will have to disclose the first originator of a mischievous tweet or message as the case may be. Additionally, intermediaries are required to provide assistance to government agencies, who must clearly state in writing or electronic means the purpose of seeking such information within 72 hours. Upon notification, an intermediary will have 24 hours to remove or disable unlawful content.

Section 79(1) of the IT Act grants safe harbour protection to the intermediaries for any kind of third-party content. This section grants an immunity to the intermediary irrespective of the content under the due diligence doctrine. Section 79(2) provides that the immunity is afforded upon an intermediary who has neither knowledge nor control over the information transmitted or stored. They are under a mandate to remove any content under a ‘notice and takedown’ regime as per Section 79(3). It requires an intermediary to remove information that does not adequately fulfil the test of being lawful upon receiving “actual knowledge”. However, according to Rule 3(4) Intermediary Guidelines, 2011, the intermediary can be made directly liable for its inability to remove the unlawful content which was being stored and perhaps transferred through its platform.

In Europe, legal discourse to address misinformation and disinformation began with the 2017 EU resolution on “Online Platforms and the Digital Single Market”. This later formulated into a High-Level Group to “advise on policy initiatives to counter fake news and the spread of disinformation online”. In turn, this facilitated the “Action Plan Against Disinformation,” and eventually in 2018, Codes of Practice on Disinformation, a voluntary self-regulatory commitment comprised of “signatories” representing multiple high profile technological companies was developed. While these codes provide helpful principles and guidelines, they are self-regulatory and voluntary and not legally binding measures.

The rules of the new code make it mandatory for a ‘significant social media intermediary’ that provides information primarily in the nature of messages (such as WhatsApp or Twitter) to enable the identification of the “first originator” of the information. This is a move aimed at tracking down people who indulge in circulation of fake news or carry out illegal activities, however, this will require the companies to break end to end encryption provided to the users. Such a requirement can affect user experience in India, by exposing users to cybersecurity threats and cybercrimes. The exposition of the “first originator” also brings in serious questions on the right to privacy.

The right to privacy is founded on the autonomy of the individual. The Apex Court in K.S. Puttaswamy case held that the right to privacy is a fundamental right. Moreover, one of the major concerns in India is the lack of a Data Protection law and it still being in the pipeline there is no mechanism to protect personal data. In such a scenario, protection of personal data being an intrinsic right under Article 21, it becomes the most vital duty of protecting the right in question in absence of proper legislation to that effect.

It is also pertinent to note that, section 69(1) of the IT Act already empowers the Central and State government to intercept, monitor or decrypt any information through computer resource only for the reasons provided under Article 19(2) of the Indian Constitution. Further, Section 69A allows the Centre to issue directions for blocking public access of any information through any computer resource.

Union Minister Ravi Shankar Prasad at the press conference while introducing the new Code reiterated that the right to internet is not a fundamental right itself, but it is a fundamental mechanism to realise other fundamental rights enshrined under Part III of the Constitution. This structure enables the Government to take substantial measures to proportionately and legitimately regulate the mechanism. While concerns have been raised on issues like decrypting end-to-encryption, the privacy of users and non-consultation with the stakeholders, these issues are expected to be resolved with the policy coming into the implementation stage. Considering the socio-economic impact of digital technologies, with a specific legislative mechanism in place, the new legal framework will ensure enforcement of rule of law and lead to a balanced digital ecosystem.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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