A very good morning to everyone present here. It gives me tremendous pleasure to welcome you all to the final rounds of the NCHRC-DNNU National Moocode Competition 2020-3. We have TC03 representing the appellates, we have PT04 representing the respondents.
I heartily congratulate them for making it the finals. I can the judges quite giving up their valuable time and base mess with their presence I would quickly just for our education or tell us every tell anybody the time allocation given by the participants for the for the appellate speaker 1 30 minutes for the speaker 225 minutes and they have reserved five minutes for the butters and for the respondents TC 0 for speaker 130 minutes speaker to 25 minutes and they have reserved five minutes for solid butters am I correct With the due permission of the bench, will we begin with the proceeding? Yes, please start. The council seeks permission to oppose the diet. Start, start.
Am I audible to the honourable bench? Yes, you are. The council seeks permission to address the bench collectively as your lordships.
The council is here in the matter of R. N. Chanko and T. Siddique versus the State of Titania and another on behalf of the appellants that is R. N. Chanko and T. Siddique.
With due permission of the bench, the council would like to state the jurisdiction. The council would like to announce the announcement of the right to self-determination. The appellant in the present case has approached the Honourable Supreme Court of Titania to initiate the present appeal under Article 136 of the Titianian Constitution. The appellants most humbly and respectfully submit to the jurisdiction on the Honourable Court. With due commission of the Vetch, the Council would like to brief the Vetch with the facts on the case.
Much obliged, Sir. Sir. This case deals with a Southeast Asian country known as Republic of Titania.
Is the voice modulation correct, sirs? It's okay, please continue. Republic of Titania, which has two main communities, the Tsars and the Thars, amounting to about 60-40% of the population respectively. Sirs, Titania had been a colony of a neighboring country, Kanbos. And there is one controversial figure from this country called Jack Smith.
He is known to possess a deep distaste for Thars, that is the minority community. And he has been linked to anti-Thar activities in Titania by providing them with guidance and strategies. Sir, there is an organization called TFT, short for Thars for Titania, working in the country, primary agenda is to establish the supremacy of thars in the country you know chips tct is the most popular social media platform in the country with more than half of the citizens of the country having their accounts on this platform on this platform users can post pictures captions and can even reshare posts on their feed sir tct employs a team of human reviewers for reviewing posts which have been flagged as objectionable by the users.
Sir, the way to trigger this mechanism is by intimating the TCT's human review team by way of an email. Now sir, this standard policy is made amply clear to the users when they sign up on the platform. By way of terms and conditions sir, TCT also puts up a disclaimer when a user signs up on this platform.
that posts which the human reviewers find to be malicious, false and harmful may be removed. Sir, another important character in this case is a news channel called Action Finance Times which is a leading and reliable news channel. Sir, Fiona Coney is a popular leader of the czar community who is also serving as a minister of reconciliation in the present titanium government. Her responsibility is for ensuring peace between the two rival communities.
However, she has been a lightning rod for controversy, given her outspoken views against the TFT and boards, and her ethics have been called into question in the past by allegations of impropriety against her, and that she favours her own community instead of the minority community. Sir, Arun Jako, the opponent, is a young citizen of Titania and a member of this organization TFT. He created an account on TCT titled ACTFT comprising of a combination of his initials and TFT. Sir, on 1st August, Arun Jako re-shared a picture posted by another account titled Patriot1, which depicted picture of two figures in a room and it depicts a nude fiona connelly being offered a bag of cash by jack smith sir the office of fiona connelly then sends on the same day itself then sends an email to tct to remove the post but tct has a system of grievance redressal wherein it asked the office to confirm that whether the pic person depicted in the picture is actually you and the office did not proceed further did not comply with the entire redressal mechanism instead on 2nd august sent a legal notice to tct for the removal of the post your lordship the tct on third august removed the post and all its city shares now the present case is that both the rn chaco and tct have been prosecuted and convicted and the Honorable Supreme Court has agreed by discretionary power to hear the present appeal. Sir I would like to with your permission I would like to proceed with the issues.
Much obliged sir. Sir I will be dealing with the issue whether Titania's prosecution of TCT violates the relevant legal provisions and my co-counsel will be dealing with the issue. that whether Titania's prosecution of R.
N. Chakho violates the relevant legal permissions. With due permission, I would like to proceed with the arguments. Much obliged, sir. Sir, I stand here today to defend the intermediary who plays a critical role in the functioning of the digital economy.
The intermediaries provide a platform for millions of users to communicate and transact online. And it is essential. that we recognize the important contributions that they make in our society. Sir, under the IT Act, there are certain obligations made upon the intermediary regarding preserving the confidentiality of information and transmit it through their services and removing or disabling access to certain content. Sir, while these obligations are necessary to ensure the safety and security of users, they also impose certain significant...
Burdens on intermediaries who must navigate a complex legal landscape to comply with these requirements. Sir, in this case, my client TCT, which is the most popular social media platform, is accused of posting illegal content on its platform, but I respectfully contend that it has taken all the reasonable measures to comply with its obligations under the idea. Sir, I am basing my...
intention on the basis of four assertions. Just these four assertions are proof that my client is not liable for all the allegations against it. So, these four points are, first, that an offense by an user by itself does not make an intermediary liable. Secondly, TCT is eligible for protection under section 79 of the IT Act.
Third, that TCT has complied with all the rules and regulations and obligations of the IT Act as well as the intermediary guidelines. And fourth, that TCT being a company cannot be made liable if it has acted diligently without actual knowledge. So as per my first assertion, I'd like to bring...
to your attention your kind attention to my first assertion which is that an offense by a user by itself does not make the intermediary liable so it must be noted that an offense by any user rn chaco in the present case would not make tct liable as it is not a publisher sir but only an internet platform tct is an intermediary platform where its users can create profiles and share information with one another. Sir, TCT is only an intermediary as per the definition of the IT Act given under section 2 subsection 1 clause W. What are the liabilities of the intermediary under the IT Act?
Sir? See, ultimately this is a case where the post is with relation to a lone public figure of that area. And it's a sort of an obscene content. It's an obscene content showing cards in a position in which you thought to be there.
So we want to know what is the role of an intimidatory when prima facie the contents comes within the form of an obscene act and a defamatory act. Because under section 19.4, few of the exceptions are it should not be obscene or it should not be defamatory. So that is where you are being held liable. Knowing it to be that, why did you permit it to come in your platform?
The council is very obliged that sir have raised this clarification but sir my contention here is that the content was posted as a third party information and as per section 79 which is a safe harbor provision an intermediary shall not be held liable for any third party information hosted by it. Now why it will not be liable? If a third party is using your platform For an illegal purpose, he is not any liability imposed upon you under the ITI. There are exceptions to that. Indeed, Your Lordship, there are exceptions and also certain rules and obligations which an intermediary must follow.
And I humbly contend that my client has fulfilled all those obligations and performed all due diligence with due measure in the present case and has removed the post within the stipulated time when received. knowledge of the same. Sir? No, he left us the guidelines and the rules prescribed.
Any obligation cast on you before posting it. Sir, for that, I would like to state that an intermediary does not involve certain three screening obligations upon the same. You could read. Sir, in the case of MySpace Inc. v. Super Cassettes Industries Ltd., Sirs may refer to page no. 13, paragraphs 71 and 75. It has amply been made clear that if intermediaries were to take up pre-screening responsibility, it would curtail free speech and censorship would be in the hands of private entities.
Further, Sir, in this case, Pre-screening obligation was determined upon the intimidation and hence that intermediary had no duty to screen illegal content and that a general knowledge of ubiquitous infringement would not oblige the intermediary to general monitoring of the content. Sir, as in this case as well which I have just cited, the court made an observation that since there were so many users subscribed to this platform, It is very difficult for an intermediary whose workspace involves not just the geographical territory where they are in but the entire world landscape. It would be very difficult to monitor and prescript or censor or arbiter all sorts of information that are posted upon it. In the present matter also sir, half the entire population of this country had their accounts.
on this platform. So I would like to quote another case called Google India Private Limited versus Vishaka Industries on page 42 para 20. An intermediary cannot become a private censor or arbiter of content of what the user publishes on its platform unless an order for removal of the same is present. And so In the present case, when the intermediary, my client, received an order for removal, it removed the post within the stipulated time of 36 hours as provided in Rule 3, Sub-Rule 1, Clause D of the Intimidary Guidelines. Sir, as I was stating that my client is not a publisher but only an internet service provider under the definition of intermediary in the IT Act. The liability of being an author of the information or even an editor of the information.
cannot be imposed upon my client. I would like to quote the definition of publisher of online curated content as per the intermediary guideline. Even under section 2, subsection 1 clause U, means a publisher performing a significant role in determining the online curated content being made available. makes available to users a computer resource that enables such users to access online curated content over the internet or computer networks.
Sir, in the present case, this intermediary TCT did not have a significant role in determining what information is to be posted as again, sir, it was merely an intermediary and not a publisher. Sir, I would going beyond the jurisdiction of Titania. I would like to post an international precedent because intermediaries are not limited by geographical territories. In the case of Delphi versus Estonia, the European Court of Human Rights held that TCT is only a service provider and role of an intermediary is merely technical and should not exercise any editorial control over the same. Yes.
Sir? In the same case law as I mentioned before, Google versus Vishaka Industries, it was also held that mere hosting of content is insufficient to attribute knowledge and it does not amount to publication of content. Thus, sir, it is clear that an originator of the material having a mental element that is an author shall be liable for the published content and not an intermediary's platform on which it was posted. Again, again, I'll... I pose the same question to you.
All your submissions you have made may relate to a content which is published in the form of an opinion or a written document or something. But if the content on the face of it shows that it is something which under many law is prohibited from publication in public, how do you explain this? It's a picture which is obscene.
And by law, by the common rights and publishing of an obscene picture, is prohibited under law. How do you overcome that? All your arguments can be accepted if it is something, an opinion or a criticism by somebody with regard to something and he can say, I don't know, he has done it.
I don't have any mechanism to verify it and under law I am not obliged to do it. But if it is something which on the face of it shows that it is not permitted under law and the law of Titan would not permit any obscene thing to be published and then when it is being published through you what would be your liability how do you get over that thank you so much sir for raising this question uh as uh your honorable sir mentioned that the liability of publication i would again contend that the liability of publication would not arise publication would differ from the content which is published whether it's a written content whether it's a picturesque content whether it is something else in the form of something and how do you if it if it is something which on the face of it you can make out that it is prohibited then what is your liability whatever you have read whatever you have argued before are those where yes you we agree with you that you knowing liability is imposed upon you to investigate find out and then publish no that is not that but if on the face of it it is apparently illegal then how can you Justify your action. That is the only issue. Sir, as per the intermediary guidelines, if any user has to make a complaint and finds that a sexually explicit post has been made upon the platform, they may inform the intermediary and it is the intermediary's responsibility to remove the same within 36 hours. This is the given stipulated time period.
And as per Rule 3 Sub Rule 1 of the Intimidary Guidelines, my client T.C.T. was given information about this objectionable post on the 2nd of August. Because on 1st of August, sir, the entire DRIVELS redressal mechanism never completed because it is an AI-regulated algorithm. And the complaint was never registered unless you comply with all the provisions.
So, this taking from 2nd August. On the very next day, 3rd August, by the TCD, removed the post and all its reshares Thereby taking due responsibility that we have acknowledged the complaint and we are going to remove it within stipulated time. Sir, as per the liability of TCT, I would like to read section 79 of the IT Act which has a safe harbour provision for the intermediaries.
It states that it is a non-obstantial clause which states that the safe harbour provision will be provided to the intermediary only if the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted. Second, that the intermediary does not initiate the transmission, select the receiver of the transmission and select and modify the information contained in the transmission. And lastly, Sir, that the intermediary observes due diligence while discharging his duties under this Act and also observe other such guidelines as the government may prescribe. Sir, as for...
See, here again, philosophy will be attractive in a case. The diligence required of you. You say the guidelines did not provide it. But if you see the development of law and the judgments, you will find that the guidelines are only a guiding factor. But if there is something which under law is prohibited, then that prohibition has to be read into the guidelines even though not specifically provided.
See, if you see the judgments of the Supreme Court with regard to the principles of natural justice, rules of procedure, there are catena of judgment that says if the rules are silent or something, but the thing done is something which is prohibited under law, then the guideline has to be read as if the rule of that prohibition has to be read into the rule. And here the words due diligence means diligence means you have to look into things which you are prohibited from doing under the common laws. Indeed your knowledge, indeed sir. Yes. The due diligence rule are rules 3 and 4 of the Antiviralry Guidelines.
Yes. And the specific rule that will be attracted in this case under rule 3 is the one I have already mentioned regarding the stipulated time period. As for rule 4. it gets attracted when the intermediary is not merely an intermediary but a significant social media individual and i accept that my client is a significant social media intermediary hence certain additional due diligence measures are imposed upon it now as per those additional due diligence measures sir uh it is important that a chief compliance officer be made a nodal contact person be made 24 7 and that the intermediary sir supports the law enforcement agencies and cooperates with them which is which has been made and be clear in the clarification number 27 28 and 31 that my client has observed all these due diligence measures that are imposed upon it now as for the disclaimer before any user can post on this platform so the TCT as I've already mentioned in the facts Puts up a disclaimer whenever a user signs up and makes an account on this platform that you are not to post false malicious or harmful content but the what the liability for pre-screening does not arise because I'd like to quote another judgment called Sasi Kala Pushpa versus Facebook India it's a 2020 judgment sir wherein the honorable court a supreme court maintained that these intimacies have a large user base and it would be difficult for them to act on every user's complaint to take down every unlawful content therefore the intermediary has no duty to entertain all the user requests so so this these are my contentions that my client can avail the protection of safe harbor under section 79 and as for the pre-screening the pre-screening obligation does not arise and also It fulfilled its responsibility of informing the users by way of a disclaimer. Sir, it must be noted that as per Rule 3.2.2 Clause D, that any information which is contrary to law and in contrast with the stated guidelines must be removed from the platform within 36 hours.
of getting actual knowledge of such content now so what is the meaning of this actual knowledge has been clarified in shreya single versus union of india the meaning of actual knowledge has been stated to mean that when a court order or notification from an appropriate government authority informs the intermediary about the unlawful content present on its platform the it is contended sir that in the present case no such actual knowledge ensued because there was never a court order and the post was taken down before the matter went to trial court itself Considering the Manila Principles on Intimidary Liabilities as well, Intimidaries should not be required to restrict content without a judicial order. So it is a well-suttered principle that the information received, the actual knowledge received has to be in the form of a court order and then this clock starts ticking regarding the stipulated time period. But in the present case, sir, When the individual made a complaint, when the individual sent a legal notice to my client, within the 36 hour period, my client removed the post and all its reshares. Sir, before I proceed with my next assertion, I'd like to quote Joint Declaration on Freedom of Expression and Internet.
It is a UN special rapporteur. on freedom of express opinion and expression so this provides that intermediaries should only be liable for third party content when they specifically intervene in that content or refuse to obey an order and it is amply clear sir that neither my client intervened in the content nor refused to obey an order because in the first place an order was never there so another judgment that i'd like to quote is brickman versus twitter inc this is a usa judgment and wherein the court held that social media companies are not liable for defamatory laws on their own platform so regarding my next assertion dealing with uh freedom of speech and expression imposing liability on t-city for rn chaco would be violating of freedom of speech under international declarations. Where?
I beg your pardon, sir. Imposing liability on TCT for RNs post is violation of fundamental right because UNESCO has also held that limiting intermediaries liability for content published or transmitted by third parties is essential to the flourishing of internet services that facilitate expression. Now coming, talking about Indian scenario. In the case of Odissi Communications versus Lokvidyan Sangatana, which my learned counsel for the respondents have also cited, this case provides, sir, that the concept of speech and expression has evolved with the progress of technology and includes all available means of expression and communication, which would include the electronic and the broadcast media.
Sir. Holding intermediaries liable for user generated content could lead to a situation where intermediaries emit the availability of content in order to avoid liability and thus freedom of speech of that person and the intermediary would be violated. May the council begins us?
Yes, proceed, proceed council. Thank you sir. Yes. The first and foremost argument that the council would like to put forward is that the actions or the conviction of Arun Jarko is not an unreasonable restriction under Article 19.2.
Your Notchips, council has no dispute regarding Article 19.1a which provides every citizen the right to speak freely and express their opinions. However, your Lordships, no right is absolute and Article 19 is also not absolute. And it is clearly laid down that under Article 19 close to reasonable restrictions of 19 is laid down and the reasonable restrictions should be in the interest of sovereignty, integrity of India, security of the state, friendly relations and public order, decency, morality, defamation or incitement to an offense.
Sir, in this instance case, it is very clear that the actions of R.N. Chakku has fallen into the reasonable restrictions which include the security of the state, public order, decency of morality. Defamation and incitement to an offence your Lordships.
In this instant case the public order of the state is clearly violated your Lordships. In this instant case we can see that in the more propositions is very clear that the public order of the state has been violated by the actions of Arun Shakur and in Shriya Singhal versus Union of India it is very well held by this very honourable God regarding the test which is to determine whether a particular action has caused public order disturbance or not. Sirs, Council requests the Sirs to kindly refer to page number 19 of the Memorandum submitted by the respondents. The second paragraph of page number 19 of the Memorandum submitted by the respondents reads, the content also caused a grave disturbance in public order. The deaths laid out in Shreya Singhal case To determine public order violation is as follows.
Does an act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquility of the society undisturbed? Here, Lord Shiv, the case also puts forward three concepts of speech and expression and that is discussion, advocacy and incitement. So, nine includes two shall come into action when speech and expression amounts to incitement. Sir, it is very well mentioned in the facts that the two conflicting communities were at peace for the past seven years due to the efficiency of the Minister of Reconciliation. But suddenly Arun Chakar posed this picture and peace is called into question and public order is gravely affected.
And it is clearly mentioned by my learned co-counsel in page number 40. of their memorandum, council would like to please refer to page number 14 of the petitioner's memorandum where the last line says that it is normal and routine issues. Sir Arun Chakar posts a picture which depicts the minister of reconciliation in a very offensive manner and for that's all reason all this. public order disturbances are breaking out and the petitioners are claiming that the normal and routine issues your lot chips and uh furthermore sir it is very well mentioned in super the superintendent uh superior intent central prison versus rama noval over here that public order is synonymous with public safety and tranquility and in the instant case the facts of the case makes it clear that the public order and public tranquility is disturbed your lecture And furthermore, it has also mentioned the fact that it has led to the causing of two lives of the TAR community by the hands of a SAR mob. And widespread destruction has also happened and also it has ultimately led to the resignation of Fiona Connelly from her office. And furthermore, regarding the obstinacy, my co-counsel has...
Let us ask you a question at this stage. Indeed, sir. If you see Ram Vandavaar New Year's case, in reference to public order and tranquility mentioned in Shreya Varshaan case, that is the direct effect of that publication on the public order and safety.
Now, this is a case where it's not the direct effect. The effect could be that because his post has exposed the conduct of a person in authority and the people are agitated because of that person's conduct. and therefore the public perception or the public is agitated against the establishment and not it's not an inter-seek community problem between them can it not be a reason because because they exposed a public particular subject a particular person of authority in the government the public is agitated with the working of the government that the manner in the government is working and therefore the public disturbance and the tranquility is disturbed and So for which the manner of administration and the working of the government is responsible and you cannot hold them directly responsible which is not the case in Ramban or Loya. Ramban or Loya's case was an incitement of the public to do something.
And then that going, how do you explain that difference? Well, sirs may I? And consequently the ministers or the ladies resignated with regard to the incident which is given. So can they be directly and responsible for the public disorder in this particular case? Sirs, council understands against you.
And may the council? Because you are prosecuting them and therefore their involvement and the direct collection of their involvement of their publication. with the public disturbance is a link which has to be established for making out a criminal offense in its oriented the council understands the question and uh may the council recite another case that is kamisho prasad versus state of bihar in which it has said that remote disturbances of public order shall fall outside uh article 19 close to uh your lordships uh the council uh request the uh sir to refer page number three of the more proposition yes 12th paragraph, page number 312th paragraph.
Yes. It is very well mentioned in the aftermath of the post. Yes. If we are to presume that this particular thing has not happened in connection with this, then...
You see, aftermath has to be referred to their publication. and the effect of the fact which they have brought to the notice of the public. See aftermath can be because of both these reasons.
They say it is an aftermath of the result of the grievance of the public against the organization or the establishment of the government and we are not responsible for that. Indeed sir, indeed. I understand.
The council would like to put forward that it is very well mentioned the facts that the fragile, the peace between the communities were fragile. and the peace was very well maintained for the past seven years. And there were no sort of disturbances in the past seven years. It is very well mentioned, the fact, sir.
And furthermore, when Arun Chakar posed a picture, it is not of a random woman, sir. It is the Minister of Reconciliation, Union Minister for Reconciliation, who have been alleged of impropriety, who have been subjected to allegations by the Tars, constantly by the Tars for Titania, sir. and then such a woman or such a minister holding official capacity is called into question and as the peace between the communities is very fragile, then it can be held that the Aram Chakwa's actions have obviously led to the problems between the communities.
If the peace between the communities were not fragile, then it would be very wrong to assume that the actions of Aram Chakwa has led to public order disturbance. But since it is very well held that the peace between the communities are fragile and slightest of the problems can cause very big issues between the communities and here, in the facts it is very well mentioned that two TAR communities were killed, widespread protests were held and also Fiona Corneli has resigned from her office. Furthermore, Arun Chakobai posting the picture.
has tagged Fiona Corneli's TCT handle by doing so, which makes it very public that this woman is the Minister of Reconciliation and while tagging such a woman in the post, the TCT's mechanism works as follows. That means if we are tagging any other user, then all of the followers of that particular user can view the content. And while RHR could tag Fiona Corneli, that means the entire country is seeing this, sir. And, uh, I believe that justifies the disturbance of public order if sir is convinced. Pursue, pursue.
Furthermore, sir, leading to, as held that a particular action of Arun Shakur has led to disturbances in public order and also incitement as per Kameshwar Prasad was the state of Bihar. So furthermore, my co-consul has already held that the particular content is obscene as it clearly satisfies the contemporary standards test. it is of prurient interest and furthermore regarding the defamation it doesn't fall under any kind of exceptions under that was provided to section 499 IPC and in this particular Christian Arun Chakku has acted without any kind of care even though the post was not made by Arun Chakku while resharing a post which contains the union minister for reconciliation in the picture in a patently offensive manner she's standing nude and that is the alliance is shown between a very controversial figure jack smith and bors that is a neighboring country and in the facts it is very well mentioned that bors had sown the seeds of distrust your lordships when such a picture comes across an ordinary man he is bound to take due care Your Lordships, Arun Chakku or any other citizen might be aware, should be aware that the peace between the communities is fragile and they have been witnessing violent riots even before the independence and even after the independence and when such a sensitive, such a patently offensive content is coming into our eyes, it is the reasonability and every normal prudent man would seek at least a due care and attention while resharing that picture, sir, that which Arun Chakku has not done and if if Arun Chakku has just visited the account Patriot One the very bio of the Patriot One read only for laughs and that just that creates the huge mens via that Arun Chakku is possessing and it deprives him of any sort of exceptions that 499 of IPC defamation provides sir and furthermore sir in Subramanya Swami versus Union of India as my co-counsel has already said It is said that the freedom of speech and expression does not mean that one can defame another and the right to criticize in a democratic society cannot be constituted to defame another. And for all these reasons, since it clearly falls under the restrictions, reasonable restrictions laid down under 19 close to, since it affects public order, incitement on an offense, defamation, obscenity, since it satisfies all the reasonable restrictions, the conviction of Arun Chakku is not an unreasonable restriction. Sir, it is hereby humbly submitted before this Honourable Court that the conviction of Arun Chakku is not an unreasonable restriction.
If Sir is convinced, may the Council move on to the next issue. So the next issue is that the next issue, the main issue is regarding Titania's prosecution of T-City, the intermediary. And the first argument that the Council would like to put forward is T-City is not immune from liability as Section 79.1 of the IIT Act is not applicable in any manner.
Sir, the council would like to draw your attention towards the petitioner's argument regarding not pre-screening. Sir, we are not, we, the respondents are not mentioning anything about pre-screening. We are not of the opinion that the content must be pre-screened or must be pre...
observed in order to be published. Your flagship here TCT is liable only because of the reason that it does not fall under the immunity which is provided under section 79 clues 1. Respondents agree that the particular TCT the social media falls under the definition of intermediary under two clues W clues 1 of the IT Act and also it it can be that the immunity can be provided if it satisfy all the conditions under subsection 2 of 79 which reads that the role of the intermediary must be limited to providing access to a communication system the intermediary must not initiate the transaction select the receiver of the transaction and select or modify the information transmitted and thirdly sir the intermediary must observe due diligence sir my learned opposing co-counsel have said that they have observed due diligence for which respondents have a grave contentious sir and it is because of the reason that the duty agents must be observed if if it follows rule 3 and 4 rule 3 and 4 of the intermediary guidelines the council would like to request sir to refer to page number 21 of the memorandum submitted by the respondents Yes. Baron, it is very well said that the immunity granted by 79.1 can be provided only if it follows Rule 3 and 4 of the 2021 rule.
Second paragraph, last line, sir. Only if it is following 3 and 4 of the 2021 rules. Yes. Sir, Rule 3.1b of the 2021 rule provides that the intermediary must inform its users not to host, display, and be a upload, modify, publish, transmit, store, update or share any information which is expressly provided in clauses 109 of its Terms and Conditions.
Sir, however, in the instance, TCT only provides that the content which Human Review Team finds to be malicious, false and harmful will be removed. Sir, the terms malicious, false and harmful are grossly bagged and also this particular provision provides the Human Review Team an arbitrary power to decide whether the particular content is obscene or not. furthermore sir rule 3 1c mandates that intermediary must inform periodically at least every year that it has the right to remove contents which are made in non-compliance of its terms and conditions however in the instant case tct informs its users only at the time of signing up which is clearly mentioned in the facts and which is in stark contrast to the mandatory periodic information sir furthermore moving on to page number 22 of the memorandum sir it is very well said that rule 31h mandates that when an intermediary collects user information at the time of signing up it must retain the said information period of at least 180 days it is mentioned with the third second and third lines of page number 22 of the memorandum rule 31h mandates and it is it must retain the said information for a period of 180 days after any cancellation or withdrawal of the users registration.
However, in the instant case, TCT has no mechanism whatsoever to find out the identity of Patriot 1. They have no sort of any information regarding this particular user who has actually created all this trouble. Also, furthermore sir, rule 4.2 mandates that SSMIs, that means this particular TCT qualifies as significant social media intermediary since it has more than 50 NAC users. And significant social media intermediaries are required to follow rule 3 and 4 and they are also meant to follow additional due diligence. And here rule 4 to mandates that SSMI in nature of messaging must enable identification of the first source originator.
If TCT had such a provision as laid down under rule 3 and 4, if they had followed due diligence, then we could have easily found out the actual identity of TCT. Patriot once who has created all this mischief sir and furthermore as lay down what the ultimately a touristy city is concerned they have violated his statutory provisor who would see so for that the punishment is not their conviction or prosecution for the offense done you see you have hand them directly responsible and along with the other accused for everything then the first accuser that here it's a case of procedural irregularity or statutory prohibited not being followed for which the provisions under the IT Act and under the penal laws are different. Indeed, sir.
You cannot put both of them in the same box and prosecute them for the same thing when you yourself said that they have not followed the procedural mandate as per the statute. Your Worship, the Council understands the concern. But regarding the procedural concept, actually in the move proposition we were informed that the procedural concepts need not be looked into. And that only because of that reason councils were restricted to limit the resources.
We accept that. So then what your lordship, when all the immunity under 79.1 fails, that means the immunity of intermediary fails, automatically 85.1 come into play. And 85.1, may the council read out. Offense by companies where a person committing a contravention of any of the provisions of this act or any rule, direction or order made thereunder is a company. Every person who at the time of contravention was committed was in charge of and was responsible to the company for the conduct of business of the company as well as the company shall be guilty of the contravention.
and shall be liable to be proceeded against and punished accordingly. That is the principle of vicarious liability under the tort incorporated into the statute. There is no dispute about the proposition being liable for that.
And regarding the liability, just for clarification, sir, actually in the mood proposition it does not mention any kind of FIR or complaint and we were also confused regarding how the state can take an action regarding the defamation. actually the procedural concepts were messed up and yes may the council move on to the next argument if the uh sir is convinced that t city has failed to observe all the duty agents under 79 one yes uh sir and moving on to the final argument that is the conviction of t city is a reasonable restriction uh sir so the conviction of t city is a reasonable restriction The council does not argue regarding the freedom of press. TCT being a social media falls under press and media and it enjoys the right under article 19.1.
And as in the case of Arun Shapu, the reasonable restrictions are applied here as well. So, according to Article 19, close to reasonable restrictions when laid down, TCT also fails to satisfy the conditions to be followed outside the reasonable restrictions, as the content which is shared via TCT is obviously defamatory and disturbs public order and has led to incitement of offense. And furthermore, it elucidates the freedom of...
Press is at the crux of social and political intercourse. There is no dispute regarding this thing. But it must also be understood that just like all other rights, even freedom of the press cannot be absolute in nature. And the freedom is not an ungraded license for everyone to speak as they wish and make every possible use of the language that they can.
Here, all the reasonable restrictions which are applied to R and Chaku are also applied to T-City. And it does not fall under the reasonable restrictions. It does fall under the reasonable restrictions which are laid out under Article 19, close to. May the counsel sum up the arguments in total?
Sir, the first argument was that conviction of Arun Sarko is a reasonable restriction under Article 19.1 as it clearly falls under Article 19, close to. And moving on to the second argument, sir, TCT is not immune from the liability as per section 79.1 because the conditions under subsection 2 of 79 are not followed as my learned opposition counsels have argued. Furthermore, sir, the conviction of TCT is also a reasonable restriction as it falls under the freedom of Press which obviously falls under 1918 and is bound to follow the restrictions laid down under Article 19 close to. Should the Council be of any further assistance, Sirs?
Dr. Raghuram G. Finished? Concluded? Dr. Raghuram G. Yes.
Dr. Raghuram G. That's all. Dr. Raghuram G. If the Council is not of any further assistance, may the Council conclude? Dr. Raghuram G. Yes, yes.
Dr. Raghuram G. Sir, the Council would like to just remind that this is a case where a woman's modesty and right to life is questioned. And as my learned co-counsel for petitioners have agreed that this particular picture is moved. So if this Honorable Court goes without taking any action, it would lead to grave injustice. And furthermore, sirs, words are golden when it comes to the Honorable Supreme Court. And with that note, on that note, may the council move on to the prayer.
Wherefore, in the light of the authorities cited, Christians raised and the arguments advanced, it is most respectfully prayed that the Honourable Supreme Court of Titania may be pleased to adjudge and declare that, Firstly, the special leave petition filed under Article 136 of the Constitution is not maintainable. Secondly, the trial court was correct in convicting Arun Shakur. Thirdly, the trial court was correct in convicting T. C. D. Fourthly, the conviction of the petitioners were in furtherance of a restriction of their freedom of speech and expression. and pass any other rule of that the Honorable Supreme Court of Titania may deem fit and proper in the interest of justice, equality and good conscience.
For this act of kindness, the respondent shall duty-bound forever plead. I just come forward for an advice. I said you want to have the written?
Like if you leave. I said okay, okay, okay. Sorry, sorry. Come on.
He leave. You have to fix the mission to approach. Yes, come, come, come.
Thanks much in advance, sir. Sirs, the learned counsel for the respondents have vehemently argued against our clients. But for the better understanding of the court, the appellants request certain clarifications from the learned counsels.
The learned counsels relied on the case of Chamanlal v. State of Punjab and laid down certain tests regarding what would qualify as good faith. They relied on this test as well whether there are reasons, fourth point, whether there are reasons to accept that the accused acted with care and caution. But I believe that the learned counsels did not put their care and attention on the fifth point, which states that whether there is a preponderance of probabilities that the accused acted in good faith.
Sir, our case has a reduced burden of growth wherein the clients do not have to probe beyond a reasonable doubt and why there exists a preponderance of probabilities. Sir, the counsels for the respondents also determined a test for obscenity laid down in the community standards test. And the third test The third point of that test relates to whether the work taken as a whole lacks serious literally artistic Political or scientific value? The third point itself, political value, is for the point of determination before this honorable quote, sirs, that the caption of our client asked for, is she selling out the country for cash?
Sir, there was no statement made. Our clients merely wanted a political discourse and wanted to amplify this matter. in the minds of other public-spirited citizens. Sir, because already Fiona Connelly had allegations of impropriety against her. Sirs, the Lord Councils for the Respondents have time and again mentioned that R.N.
Chakot, our client, posted the image. But we have never contended or admitted the fact of posting. Re-sharing we admit.
But the re-share liabilities upon our client differ from the publishing liability. Sir, the learned counsel for the respondent also stated that they never asked us to explain about the pre-screening obligations. And they are not of the opinion that we should have any pre-screening obligations and what they mentioned.
But merely because the respondent is of the opinion that pre-screening obligations, they never asked for it, does not negate the fact that the intermediaries by way of several judicial precedents, does not negate the fact that the intermediaries by way of several judicial precedents, that the intermediaries are not bound by pre-screening obligations. Sirs, the LKR also mentioned that there has to be a periodical disclaimer regarding that no offensive content shall be posted. And they also stated that when the user signs up on the platform, they are only informed that one time. Sir, nowhere in the facts has it been stated. that only at this time of signing will the users be informed.
The only is merely an assumption of the respondents and it has been clearly clarified by way of clarifications as well that the intermediary was in compliance with the IT Act. In reference to section 66E of the IT Act, sir, regarding the breach of privacy, I'd like to... seek a clarification from the learned councils that it was the publication of a new picture which they contend the picture needs to be treated as more of a source as it only had the face of the respondent yeah i request the ontario thanks to provide anything yeah thank you very much both the teams did very well Results will follow, we discussed, but winning or losing is not the consequence. Participating and participating and giving your best is the thing which satisfies us and I can candidly admit that all of you, all the four speakers did their best.
The research scholars have assisted them in the best possible way and therefore congratulations to all of you. Don't be perturbed by day one wheel of snow. The very fact that you participated in presenting the case as was given to you and discharge your role as an advocate is good enough.
For you to feel excited and proud. Sit down. Now all the students, sit down, sit down, sit down.
All the students sitting here, I'll share few thoughts with you for about two minutes. Mooting is something which is done for preparing you for the future. In our day, I've been in this profession now.
into the 42nd year and when we started my I when I started my practice way back in 1979 the first time I saw a code was actually when I entered the Matha Pradesh High Court in Jabalpur before that you have seen it as a building from outside but you all have an opportunity now to go and sit and work in an office as an intern work in various establishment as an intern come to the port, work as an intern, participate in MoOTi and everything. So the concept of legal education has drastically changed and the credit for that goes to none other than Professor Madhav Menon who invented the five-year course and started the NNU in Bangalore. So MoOTi is nothing but preparing you how to argue a matter when you really enter. the field of litigation.
It's only for preparing you, which in our olden days, our seniors used to say, behas karne ke pehle jeeb saaf karo. So we are in the schools itself, law schools itself, your jeeb is being cleared to prepare you to argue effectively. Now when we as judges in the moot court come and sit to hear you. We come here not for deciding the case.
Our minds are free that at least we don't have to write a judgement after hearing it. See, when you have to hear a case and decide a judgement, the concept of hearing a case totally changes. Our role is to find out how you react, how you have studied the problem, how you have researched on it, what are the judgements you have.
taken out and the more important thing is when we ask questions to you how do you react to it do you get perturbed do you get derailed how do you understand that question how you respond to that question do you lose your cool do you forget what you have to say all these things are a lie because ultimately when you go to the court and when you start arguing the method the judge may pose many questions Now few of the questions that a judge may pose to you according to you will be totally unreasonable, unconnected with the case and you may feel yourself that this is the most useless question which should not have been asked. But can it be a ground to retaliate and argue with the judge? No. So the art of education requires you to read the mind of a judge and present your case before the judge the way he wants it to be heard. You will be a good advocate only if you carry the judge with you throughout the case.
And how do you learn that? The only way to learn that is don't waste your time in canteens or other places. When you are in the court from 10.30 to 4.30 in the evening, even if your senior has given you a case to argue or not, sit in some court, see how the judge reacts to a particular case, try to read his mind, try to find out whether he is a conventional judge, a convicting judge, a liberal judge, an acquitting judge, a judge who gives relief or not and moderates your argument looking to the mind of the judge.
You will be a very good advocate if you can read the mind of a judge and articulate your argument and proceed with the hearing of the case by understanding what the judge wants. Give the case to the judge the way he wants it irrespective of the fact whether it does not suit you or not. Ultimately, the client has given you the brief thinking that you will do the best for him. Now, in the process of doing the best to the client, you don't forget the ethics of the profession. Ultimately, as an lawyer, you will be an officer of the court.
An officer of the court is to assist the court not to sponsor the case of your client merely because he has given you the fees. does not mean that morally and physically he has bought you. You owe a professional responsibility to your client within the professional ethics.
And the professional ethics is dispensation of justice to the needy with the help of the court. And therefore, you are an officer of the court and you have to fairly tell to the court what is right and what is wrong. Even if for some matter it adversely affects your client. I have seen many lawyers argue the matter and I can share some examples with you which in go to say as to what is the actual role of an advocate.
When I started my practice we had an advocate general of the state who was known as Mr. Adhikari. A case was being argued which pertained to the constitutional validity of the Motor Vehicles Act. And the Chief Justice of that time asked the Advocate General, Mr. Advocate General, how did your government formulate such a rule? Per se, it is unconstitutional and altruistic.
The Advocate General said, Sir, I also carry the same opinion as you do. I gave a written opinion to my government not to bring this law, but I am sorry they did not agree and therefore... The secretary of the department is here to answer all your queries and is set down.
That was the professional ethics and standard which was maintained at that point of time. But today, if I tell you, you will say, sir, the moment we do it, the evening before I go to my office, the chief minister would remove me from the office of the advocate general. That is how the profession has changed.
But the profession has to live and it will live only if the standards and ethics. are maintained and therefore you are owe a big responsibility to ensure that you do within the ethics provided the litigant is there you have to help him but you you are not required to sponsor or safeguard his interest in an illegal and the moment you find a judge find that you are a straightforward lawyer and you present the case as per below you will You may lose in one or two cases, but in the long run, you will always win. I came to this site after 21 years of practice only because I told the Chief Justice that a case was being argued and I was for a particular bank. And when the case was being argued, the counsel for the employee could not present his case properly and the Chief Justice was going to dismiss his case. When I stood up and said, my Lord, the case has to be allowed because the Supreme Court judgment is against me, my child.
And I gave that judgment. He won the case. And the next day, the Chief Justice called me and said, you come to this side. You are not to be on that side.
I am here. So what I tell you, my dear friends, friends are that be honest. Honesty may not be you at the very beginning, but in the long run, you'll make a reputation.
and honesty will always screw you. So therefore, maintain the professional dignity, act as an officer to the court and maintain all the ethics required in the profession. Thank you very much for having given me at least these two minutes to share my feelings with you.
Thank you. Jai Hind.