IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 3672/2012 and CM Nos.7709/2012, 12197/2012 and 6888/2013
K.N. GOVINDACHARYA ..... Petitioner
Through: Mr Virag Gupta, Mr Vikas Chandra and Mr Rajeev Kumar Deora,
UNION OF INDIA and ORS ..... Respondents
Through: Mr Rajeeve Mehra, ASG with
Mr Sumeet Pushkarna, CGSC and
Mr Gaurav Sharma, Advocate for R-1/UOI.
Mr Akhil Anand and Mr Praveen Sehrawat, Advocates for R-3.
Mr Parag Tripathi, Sr. Advocate with Mr Tejas Karia, Ms Suman Kukrety,
Advocates for R-9.
Mr Arvind Nigam Sr, Advocate with Mr Neel Mason and Mr Ankit Relan,
Advocates for R-10.
HON'BLE MR. JUSTICE BADAR DURREZ AHMED, ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE VIBHU BAKHRU
O R D E R
With regard to the issue of whether children can open accounts with
social networking sites such as Facebook and Orkut, there is no dispute
that children below the age of 13 years are not permitted to open such
accounts. It is not in dispute that if it comes in the knowledge of any
person that a child below the age of 13 years has opened such an account
he may make a complaint to the social networking site who shall then take
appropriate action, after verification, for deletion of that account.
In this connection, the learned counsel for the petitioner has
drawn our attention to the Information Technology (Intermediaries
Guidelines) Rules, 2011. There is also no dispute that the social
networking sites such as Facebook and Orkut fall within the definition of
?Intermediary? as per Rule 2(i) of the said Rules read with Section
2(1)(w) of the Information Technology Act, 2000. Therefore, the
provisions of Rule 3 of the said Rules would apply to them. Rule 3
requires due diligence to be observed by the intermediary. Rule 3(1)
computer resource by any person. There appears to be no difficulty
insofar as Rule 3(1) is concerned inasmuch as apparently both Facebook
and Orkut have published the Rules and Regulations as also the privacy
policy and user agreements for access and usage of their computer
resource. Rule 3(2) contains certain other directions as to what should
be the content of the Rules and Regulations, terms and conditions and the
user agreements. For the present, though, we are focussing on Rule 3(4)
which reads as under:-
?(4) The intermediary, on whose computer system the information is
stored or hosted or published, upon obtaining knowledge by itself or been
brought to actual knowledge by an affected person in writing or through
email signed with electronic signature about any such information as
mentioned in sub-rule (2) above, shall act within thirty six hours and
where applicable, work with user or owner of such information to disable
such information that is in contravention of sub-rule (2). Further the
intermediary shall preserve such information and associated records for
at least ninety days for investigation purposes.?
By virtue of a subsequent clarificatory notification, it has been
clarified that the intermediary shall respond to or acknowledge the
complainant within thirty six hours and the same shall be redressed
promptly but in any case within 30 days. From the above, Rule 3(4) as
clarified, it is apparent that the intermediary can take action both on a
complaint in writing from affected persons as well as on obtaining
knowledge by itself. This is relevant in the context of the material
which has been submitted by the learned counsel for the petitioner with
regard to usage of the social networking sites by minor groups. Those
have been made part of the papers in the present petition and will be
taken note of by the social networking sites and they shall take
appropriate action as required under Rule 3(4) of the said Rules.
Mr Nigam, the learned senior counsel appearing on behalf of Google
Inc., states that there was a complaint with regard to one search result,
which was pointed out by the learned counsel for the petitioner. That
has been addressed and removed.
The learned counsel for the petitioner has also drawn our attention
to Rule 3(11) of the said Rules, which reads as under:-
?(11) The intermediary shall publish on its website the name of the
Grievance Officer and his contact details as well as mechanism by which
users or any victim who suffers as a result of access or usage of
computer resource by any person in violation of rule 3 can notify their
complaints against such access or usage of computer resource of the
intermediary or other matters pertaining to the computer resources made
available by it. The Grievance Officer shall redress the complaints
within one month from the date of receipt of complaint.?
On going through the above, sub rule (11), we feel that it should be directed that intermediaries, including the social networking sites
such as Facebook and Orkut, should immediately publish the names of the
respective Grievance Officers on their websites alongwith contact numbers
as well as the mechanism by which any user or any victim who suffers as a
result of access or usage of computer resource by any person in violation
of rule 3, can notify their complaints against such access or usage.
The same be complied with, if not already done, within two weeks.
Mr Rajeeve Mehra, the learned Additional Solicitor General
appearing on behalf of the Union of India, states that the Union of India
shall also take steps to ensure that the intermediaries comply with the
requirement of Rule 3(11).
The learned counsel appearing for the petitioner has also raised
certain issues with regard to the provisions of the Public Records Act,
1993. The learned Additional Solicitor General seeks sometime to examine
the same before he makes his submissions in this regard.
Renotify on 26.09.2013.
Dasti under the signatures of the Court Master.
BADAR DURREZ AHMED, ACJ
VIBHU BAKHRU, J
AUGUST 23, 2013/MK