Final APPPP

TC: P BSG2405
Fifth Dr. B.S Goel Memorial National Moot Court Competition 2024
Before
THE HON’BLE SUPREME COURT OF IDINA
SPECIAL LEAVE PETITION. _______/2024
FILED UNDER ARTICLE 136 OF CONSTITUTION OF IDINA
IN THE MATTER BETWEEN
HANDBOOK____________________________________(APPELLANT)
VERSUS
MR.PHILLIP DUTTA_______________________________(RESPONDENT)
MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS
Index of Abbreviations ....................................................................................................Pg. 3
Index of Authorities……………………………………………………………….……Pg.4-5
Statement of Jurisdiction..................................................................................................Pg. 6
Statement of Facts ...........................................................................................................Pg.7-8
Issues Raised ....................................................................................................................Pg. 10
1. WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIATORY

GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES 2023 BE
DECLARED AS UNCONSTITUTIONAL ON THE BASIS OF BEING
VIOLATIVE OF RIGHT TO FREEDOM OF SPEECH ?
2. WHETHER REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY BE

CONSIDERED AS DEFAMATION?
3. ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

DECRYPTION REASONABLE RESTRICTIONS ON THE RIGHT TO
PRIVACY UNDER THE CONSTITUTION OF IDINA?
4. IS THE RIGHT TO REMAIN ANONYMOUS A FUNDAMENTAL RIGHT

PROVIDED UNDER THE CONSTITUTION OF IDINA?
Summary of Arguments .............................................................................................Pg.11-12
Arguments Advanced..................................................................................................Pg. 13-26
Prayer…………………………………………………………………………………Pg. 27
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MEMORIAL ON THE BEHALF OF THE APPELLANT
INDEX OF ABBREVIATIONS
Abbreviation Definition
s
AIR All India Reporter
UOI Union of Idina
& And
Art. Article
OTT Over The Talk
Hon’ble Honourable
No. Number
HC High Court
SC Supreme Court
OMC Organization For Monitoring Crime
AR Annual Report
SCC Supreme Court Cases
Sec. Section
IT ACT Information Technology Act 2023
u/s Under section
v. Versus
TIT The Idina Times
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INDEX OF AUTHORITY
1. Primary Sources
1.1 LIST OF CASES
1. Chaman Lal Chaman Lal v. State, (2004) 13 SCC 513
2. Arnab Ranjan Goswami v. Union of India &Ors. (2020) 14 SCC 12
3. Bhagat Singh v. Lachman Singh, (1975) 1 SCC 613
4. Raghav Chadha v. State, 2021 SCC Del 4023
5. Kharak Singh v. State of U.P., (1964) 1 SCR 332
6. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
7. Malak Singh v. State of Punjab, (1981) 1 SCC 420
8. PUCL v. Union of India (1997) 1 SCC 301
9. Vinit Kumar v. Central Bureau of Investigation and Ors., (2021) 7 SCC 748
10. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
11. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)
12. Sahara India Real Estate Corp Ltd v. SEBI, (2012) 10 SCC 603
13. Shreya Singhal v. Union of India, (2015) 5 SCC
1.2 List of Statutes

1. The Idina Penal Code, 1860
2. The Constitution Of Idina 1950
3. Information Technology Act 2000
6. MEITY 2023 Intermediary Guidelines
7. Law of Torts
4|Page
Secondary Sources
1.1.List of Books
i) Cyber Law by Pawan Duggal
ii) JN Pandey Constitutional Law
iii) MP Jain Constitutional Law
iv) Ratanlal and Dheerajlal
v) K D Gaur
1.2.Website Referred
1) Manupatra Online Resources, http://www.manupatra.com.
2) Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3) Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
4) SCC Online, http://www.scconline.co.in.
5) Oxford Dictionary, http://www.oxforddictionaries.com.
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STATEMENT OF JURISDICTION
The Appellant in the matter at the hand respectfully submits that this Hon’ble Court maintains
jurisdiction to adjudicated the instant case in conformity with Article 1361 of the
Constitution of Idina.
The Appellant humbly submits to the jurisdiction of the Hon’ble Court of Idina
THE PRESENT MEMORIAL PUTS FORTH THE FACTS , CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE
STATEMENT OF FACTS
Special leave to appeal by the Supreme Court

1
1) Not with standing anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
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1) Union of Idina is a socialist nation that is sovereign, secular, democratic, republican, and
has a legal system and governmental structure akin to those of Idina. Union of Idina has seen
rapid expansion in the IT industry and has become a leader in the digitization of their whole
ecosystem.
2) Handbook, is a worldwide technological firm that has joined the Union of Idina market.
Handbook is a social media tool that the people of Union of Idina rely significantly on. It let
users produce and share tales, films, and images with friends and followers. However, in
order to utilize the Handbook, a user must enter their email address, phone number, name,
and date of birth.
3) The Union of Idina's top comedian, Philip Dutta, is renowned for his observational
comedy about life's oddities. Together with being the creator and host of the Talk Up
program, which debuted on Handbook, he also frequently makes political jokes and satirizes
the government and its policies through stand-up comedy and sketches.
4.) The Organization for Monitoring Crime ("OMC"), the government agency responsible for
tracking Idina's crime statistics, publishes its "Annual Report of 2023" in November. It states
that as a result of social media and digital media's significant growth platform application the
nation's digitization has led to a notable rise in cybercrimes such as trolling, cyberbullying,
distribution of false information, and cyberstalking.
5.) The Ministry of Electronics and Information and Technology (MeIT) was advised by the
Union Government to create stronger legislation governing all digital platforms in order to
counter the surge in these types of cybercrimes, following their reading of the OMC Annual
Report in early 2023. On December 20, 2023, the Official Gazette released the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2023 (often
known as the "IT Rules"). These rules required the intermediaries and digital media platforms
to designate compliance officers and create self-regulatory organizations.
6.) On February 17, 2024, at around 5:55 p.m. Lexia, the capital city of Union of Idina, saw
three consecutive bomb explosions. A total of 45 adults and 15 children died in the
explosions.
7.) A manipulated video of Philip Dutta began circulating on Handbook on February 20.
Philip was seen in this video applauding the terrorist who carried out the bombings.The Idina
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Times Reposted this video on their Handbook page and denounce Mr. Philip's behavior. The
video went viral and quickly gained popularity. This incited a surge of animosity towards Mr.
Philip from the common people who had suffered from similar blasts, sparking protests
against Mr. Philip.
8.) Following the incident, Mr. Philip contacted The Idina Times after learning that a
manipulated video of him was making the rounds online and had been posted on their
handbook page. However, he did not hear back from them. The High Court of Lexia received
a defamation lawsuit filed by Mr. Philip in response to the Idina Times' silence and refusal to
take down the video from their page. The suit sought monetary awards, but the court rejected
it on the grounds that the news agency had shared someone else's previously posted video
rather than its own. Mr. Philip aggrieved by this judgement approached the Supreme Court of
Idina under Article 136 of the Constitution of Idina.
9.) Anxious about the hate speech being directed at him and the Times of Idina's lack of
response, he went to Handbook to request that the doctored video be taken down from their
website and to stop its further distribution. He claimed that since the news video was phony,
Handbook had a responsibility to stop the dissemination .Handbook replied by supplying the
documentation proving that the complaints had been handled..
10.) Disappointed with their answer he filed a complaint under Article 226 with the High
Court of Idina, claiming that the Handbook's tardy response had violated his right to life. His
reputation and quality of life have suffered as a result, and he has been the target of nasty
remarks and threats of death everywhere he goes. The High Court directed Handbook to
identify the original creator of the aforementioned video and to halt its distribution.
Handbook responded to this by filing a special leave petition with the Supreme Court of
Idina, arguing that the new IT regulations violate millions of people's fundamental rights to
free speech and privacy by forcing the petitioner to violate end-to-end encryption on its
messaging service and the privacy principles that underpin it.
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Timeline
2022
 November: OMC released its "Annual Report of 2022," highlighting a rise in

cybercrimes due to increased social media usage.
2023
 Early 2023: Union Government recommended MeIT to develop regulations to

address cybercrimes.
 December 20: IT Rules, 2023 published in the Official Gazette.
2024
 February 17: Bomb explosions in Lexia, capital of Union of Idina which resulted in
60 casualties.
 February 20: Doctored video of Philip Dutta praising terrorists got circulated on
Handbook.
 Late February: The Idina Times shared the doctored video which led to a public
outrage and protests.
 March: Philip Dutta filed defamation suit in High Court of Lexia which was denied.
Philip Dutta approached the Supreme Court under Article 136. Philip Dutta contacted
Handbook to remove the video, Handbook provided evidence of processing
complaints but no immediate action was taken. Philip Dutta approached High Court
of Lexia under Article 226, arguing Handbook's slow response violated his
rights.High Court ordered Handbook to find the video’s originator and to stop its
spread.
 Late March: Handbook filed a special leave petition in the Supreme Court, arguing
IT Rules violate privacy rights.
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STATEMENT OF ISSUES
ISSUE 1
WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIATORY

GUIDELINES AND DIGITAL MEDIATHICS CODE) RULES 2021 BE DECLARED
AS UNCONSTITUTIONAL ON THE BASIS OF BEING VIOLATIVE OF RIGHT TO
FREEDOM OF SPEECH ?
ISSUE II
WHETHER REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY BE

ISSUE III
ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

DECRYPTION REASONABLE RESTRICTIONS ON THE RIGHT TO PRIVACY
UNDER THE CONSTITUTION OF IDINA?
ISSUE IV
IS THE RIGHT TO REMAIN ANONYMOUS A FUNDAMENTAL RIGHT

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SUMMARY OF ARGUMENTS
ISSUE I) WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIATORY

GUIDELINES AND DIGITAL MEDIATHICS CODE) RULES 2021 BE DECLARED
AS UNCONSTITUTIONAL ON THE BASIS OF BEING VIOLATIVE OF RIGHT TO
FREEDOM OF SPEECH ?
The submission made before the court argues that the Information Technology Act of 2023
should be declared unconstitutional for infringing upon the right to freedom of expression, as
guaranteed by Article 19(1)(a) of the Constitution of Idina. The Act, particularly Section
66A, has been criticized for giving the government the power to censor online content, which
undermines the fundamental right to freedom of speech and expression. The importance of
free speech in a democratic society is emphasized, allowing citizens to express their opinions
without fear and contribute to the development of the country. Social media platforms have
revolutionized the way people share ideas and opinions, allowing for greater access to a wide
audience and enabling real-life action as a result. However, restrictions on freedom of speech
outlined in Article 19(2) must be clearly defined, and laws that impede on these rights should
be struck down unless they fall under the specified grounds for limitation.
ISSUE II )WHETHER REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY

BE CONSIDERED AS DEFAMATION?
The submission before the court argues that mere reposting of alleged news by a news agency
cannot be considered defamation according to Section 499 of the Idina Penal Code, which
defines defamation as a false statement presented as a fact that harms a person's character.
Cyber defamation, or online defamation, occurs when defamatory statements are made online
or on social media platforms. In this case, Idina Times reposted a video that was originally
posted by someone else, which does not constitute the creation of defamatory content as they
were not the original creators of the video.In the present case, Idina Times reshared the video
for the benefit of the public without any malicious intent, therefore, they cannot be held lible
for defamation. Courts must uphold the freedom of the press, and the imputation of harm or
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deliberate malice was not found in this case, allowing the petition to be allowed. Overall, the
High Court denied Mr. Dutta's defamation suit against Idina Times, stating they did not
originate the content, and Handbook supports this decision by emphasizing that
intermediaries should not be held liable for third-party content.
ISSUE III) ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

The submission before the Supreme Court of Idina argues that interception, monitoring, and
decryption of data are not reasonable restrictions on the right to privacy guaranteed by Article
21 of the Constitution. The right to privacy is seen as fundamental to personal liberty and any
infringement upon it should be backed by a fair and just legislative procedure.
The principle of proportionality and legitimacy was highlighted in the PUCL V. Union of
India case, emphasizing that privacy is essential for individual sanctity.
Overall, the argument presented to the Supreme Court of Idina is that surveillance and
decryption practices without appropriate safeguards violate fundamental rights and may lead
to self-censorship, hindering free expression and personal liberty.
ISSUE IV) IS THE RIGHT TO REMAIN ANONYMOUS A FUNDAMENTAL RIGHT

The importance of the right to remain anonymous is emphasized in the context of freedom of
expression and privacy in Idina. Anonymity allows individuals to express themselves freely
without fear of reprisal, especially in countries where freedom of expression is restricted.
Anonymity has played a significant role in historical events and continues to be relevant in
modern times for various reasons. The right to privacy, enshrined under Article 21 of the
Constitution of Idina, includes the right to remain anonymous and control the dissemination
of personal information. The Supreme Court has recognized privacy as a fundamental right
and emphasized the importance of safeguarding individual autonomy and dignity. Anonymity
is considered essential for protecting freedom of speech and expression.
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THE ARGUMENTS ADVANCED
ISSUE I
WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARY

GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2023 BE
DECLARED AS UNCONSTITUTIONAL ON THE BASIS OF BEING VIOLATIVE
OF RIGHT TO FREEDOM OF SPEECH?
It is most humbly submitted before this Hon’ble Court that the Information Technology
Rules 2023 should be declared unconstitutional on the basis of being violative of Right to
Freedom of Speech.
The IT Act violates the fundamental rights through its certain sections such as Section 66A,
which has been criticized for giving the government enormous powers to censor online
content which could be seen as violation of article 19(1)A
Article 19(1) (a) of the Constitution of Idina guarantees freedom of speech and expression for
all citizens of the country. Freedom of speech and expression is the foundation of a
democratic society and a right guaranteed to each and every citizen. It empowers the
individuals to express their views without any fear and thus contributes towards the
development of the nation.
Article 19(1)(a) secures to every citizen the right to "Freedom of speech and Expression"".
Article 19(1) guarantees the right to the former and not to later. Freedom of speech and
expression has a well-recognized connotation which mean liberty to express one's views,
opinions and beliefs. The freedom of speech and expression means the right to express one's
convictions and opinions freely by word of mouth, writing, printing, pictures or any other
mode and this right has characterized this right as a 'basic human right'".
In Maneka Gandhi v. Union of India 2, the Supreme Court observed that, "Every citizen must
be entitled to participate in the democratic process and in order to enable him to intelligently
exercise his right of making a choice, free and general discussion of public matters is
2
AIR 1978 SC 597
13 | P a g e
absolutely essential." Previously, the only way an ordinary citizen could express her views in
the media was through a letter to the editor. Now, with the advent of social media websites, a
citizen can reach out on a much wider platform with as much as a click. The domino effect of
the revolutions of social media, which enabled the translation of ideas shared in cyberspace to
real life action on the ground. This was regarded as something of a miracle a bloodless
revolution within a matter of a few months, something that previous generations could not
dream of. This trend blurs the traditional boundaries between the journalist and his audience
it enables the ordinary citizen who lacks media connections to reach out to an audience. It is
submitted, therefore, that it is very important that such transmission of thought is never
hindered. However, certain restrictions are laid down in Article 19(2). These restrictions are
exhaustive and are to be strictly construed. Thus, the Court must strike down any law which
imposes a restriction upon the freedom of speech or expression unless it falls under directly
under any of the grounds specified in Article 19(2)
The SC in Shreya Singhal v. UOI3, strcuk section 66A of the IT ACT, 2023 as
unconstitutional citing its vague and arbitarary nature which contradicts the Fundamental
rights stated down in the constitution of Idina. Further, it reiterated the intent of the
constituent assembly, directing the supremacy of freedom of speech and expression as
provided under Article 19 of the Constitution.
Section 66A of the IT Act, 2023 criminalized the sending of any information through a
computer or communication device that was "grossly offensive" or had a "menacing
character. These terms can be widely interpreted and can be misused by the government for
bending the rules into their own favour. This section created fear on people to express their
thoughts due to fear of prosecution. This is contrary to the spirit of Article 19, which aims to
protect and promote free speech and expression.
The Impugned Notification, the first of its kind issued under Section 69(2) of the IT Act read
with Rule 4 of the 2009 IT Rules, has essentially activated the unconstitutional surveillance
mechanism erected by the Act and Rules, necessitating urgent intervention by this Hon'ble
Court, especially since the institutional structure created provides for no judicial oversight
which, as shall be elaborated hereunder, would be a minimum requirement for the provisions
3
(2015) 5 SCC 1
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in question to pass muster from a constitutional standpoint. It was held that privacy is a
constitutionally protected right in India in K. S. Puttaswamy v. Union of India4.
It is imperative for this Hon'ble Court to test the constitutionality of the surveillance system
erected by the impugned provisions along with the impugned notification, especially since its
very existence, in the absence of any independent oversight, impacts the fundamental rights
of citizens. The appellant respectfully submits that the very existence of a surveillance system
impacts the right to privacy and chills the exercise of liberties under Articles 19 and 21, and
prevents people from thinking about, reading and exchanging unorthodox, controversial or
provocative ideas. Regardless of whether or not a citizen knows that her email is being read
by the government, the perceived danger, founded on reasonable suspicion that this may
happen, itself impacts the citizen's ability to express, receive and discuss such ideas. This was
explained by Justice Subba Rao in his dissenting opinion in Kharak Singh v Union of
Indiaand has, most recently, been upheld by this Hon'ble Court in Puttaswamy Case.
The newly introduced IT rules provided by the Ministry of Electronics (Meity) have absolute
and unrestricted power to create a fact check unit to identify any false or misleading content
online.
In Facebook v. Union of India in 20195 it is imperative to frame a proper regime to find out
the persons, institutions, and bodies who were the originators of content messages. It has
become necessary to seek such information from the intermediaries. The intermediaries are
required to respect users fundamental right to freedom of speech and expression implying
that they have to balance between deciding whether content should be removed and if so, will
it violate users right to speech or not.
Section 69A of the Information Technology Act gives the government the power to block
online content and public access to information in certain circumstances. This section gives
government unnecessary and excessive power to suppress information that criticises their
working. This in turn gives birth to lack of transparency and unnecessary censorship by the
ruling government
4
(2017) 10 SCC 1
5
W.P. (C) No. 165/2019
15 | P a g e
Illustration: If an individual expresses their concern regarding the working of the ruling
government and even if its right it adversely affects the reputation of the government. If the
government struck down such views it violates the freedom of speech and expression of that
individual and in turn public at large gets deprived of getting to know each other’s views. If
the government uses broad exemptions to deny access to information, it can limit the public's
ability to understand government actions and policies. This lack of transparency can
undermine public debate and prevent a fully informed discourse, thus indirectly harming
freedom of speech.
In the case of Kunal Kamra v. UOI,On 10 April 2023, comedian and political satirist Kunal
Kamra challenged the Rules in the Bombay High Court. Kamra claimed that the formation of
a fact-check unit is in conflict with Section 79 of the Information Technology Act, 2000 (IT
Act) which is a safe harbour provision for social media intermediaries. It protects them from
liability for user-generated content. According to Section 79(3), intermediaries must remove
content upon receiving a notification from the Union Government. Under Rule 7, of the
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021, a social media intermediary can lose its safe harbour if it does not comply with the IT
Rules.
Kamra relied on Shreya Singhal v Union of India6, where the Supreme Court held that
notifications to take down content should be issued through a court order. The IT Rules 2023
enables the Union Government to bypass this process and address the social media
intermediary directly. Kamra claims that the Union would act as both “the Judge and the
Prosecutor.”
Safe Harbour for intermediaries is a provision which provides due diligence in discharging
their duties and follows guidelines prescribed by the state. It protects the social media
platforms from being accountable for the content posted by users. This provision is clearly
stated under Section 79 of the IT Act. This section functions both as an immunity and a
restrictive provision
6
(2015) 5 SCC 1
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for social media companies. Handbook had followed all precautionary steps as mentioned in
point 2 of the proposition, to use handbook one had to answer the security questions and enter
their personal information such as name,date of birth,email id and phone number.
ISSUE II
WHETHER THE REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY BE

It is most humbly submitted before this Hon’ble Court that mere reposting of alleged news by
a news agency cannot be considered as defamation.
Section 499 of the Idina Penal Code states defamation as a false statement presented as a fact
that causes damage or injury to the character of the person it is about. It means harming the
reputation of a person in front of a third party. When a person is defamed in cyberspace it is
defined as cyber defamation or online defamation. Such statements are made through online
or social media platforms which involve the written or posted material.
In the present case,,Idina Times had reshared the video which was originally posted by
someone else which does not constitute creation of defamatory content.They were not the
original creator of the doctored video.
Any statement made intentionally or with knowledge or having reason to believe that it will
harm the reputation of the person concerned is the essential ingredient of defamation.
For a defamation claim to succeed, it must be shown that the accused published the content
with knowledge of its falsity or with reckless disregard for the truth. Reposting content does
not meet this standard. In the present case the content was merely reshared by Idina Times on
the platform of Handbook and they were not the originator of the doctored video and had no
Mens Rea of defaming Mr. Phillip Dutta.
i) Exception to Section 499, IPC
Section 499 of IPC lists the exceptions under which the statements are not defamatory:
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1. Third Exception.—Conduct of any person touching any public question.—It is not

defamation to express in good faith any opinion whatever respecting the conduct of any
person touching any public question, and respecting his character, so far as his character
appears in that conduct, and no further.
Illustration-----It is not defamation in A to express in good faith any opinion whatever

resepting Z's conduct in petitioning Government on a public question, in signing a requisition
for a meeting on a public question, in presiding or attending at such meeting, in forming or
joining any society which invites the public support, in voting or canvassing for a particular
candidate for any situation in the efficient discharge of the duties of which the public is
interested
.2. Tenth Exception.—Caution intended for good of person to whom conveyed or for public
good.—It is not defamation to convey a caution, in good faith, to one person against another,
provided that such caution be intended for the good of the person to whom it is conveyed, or
of some person in whom that person is interested, or for the public good.
3.Sixth Exception.—Merits of public performance.—It is not defamation to express in good

faith any opinion respecting the merits of any performance which its author has submitted to
the judgment of the public, or respecting the character of the author so far as his character
appears in such performance, and no further.
Explanation.—A performance may be submitted to the judgment of the public expressly or

by acts on the part of the author which imply such submission to the judgment of the public.
A statement is not defamatory if it is both true and made or published for the benefit of the
public at large. In Jawaharlal Darda V. Manoharro Ganpatrao7, if the accused in good faith
published the report, it cannot be said that they intended to harm the reputation of the
complainant. The news items were published for public good and not to malign the reputation
of the complainant, therefore no offense against the accused was made out.
In the present case Idina Times reshared the video for the benefit of the public at large that
too without any vengeance so it cannot be held liable for defamation.
7
AIR 1998 SC 2117
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Essentials of defamation
a. The statement must be defamatory, and the validity of the statement is determined by
how the general public as a whole will perceive the subject of the statement.
In the case of Ram Jethmalani v. Subramanian Swamy (2006)8, the Delhi High Court ruled
that Swamy’s claims as to the fact that Ram Jethmalani had received funding from a
prohibited organisation to support Tamil Nadu’s Chief Minister in the Rajiv Gandhi
assassination case were defamatory.
b. The statement must be about the plaintiff, and it must demonstrate that it is falsely
disparaging them:
For instance, in the case of T.V. Rama Subba Iyer v. A.M.A. Mohindeen 9, the Madras High
Court determined that although the defendants were held responsible, they had no intention of
doing so because it was stated that a specific individual transporting goods from Agarbathis
to Ceylon had been detained for the offence of smuggling. The plaintiff was one of those
operating a similar business, and his reputation was seriously damaged as a result of this
comment.
The essence of the offense of defamation is the publication of an imputation with the
knowledge that it will harm the reputation of the person concerned. The imputation must be
made with Mens Rea..Harm means imputation on a person’s character made & expressed to
others with the motive to lower them in estimation. Idina Times and Handbook had no such
motive to lower Mr Philip’s reputation.
In Arnab Ranjan Goswami V. Union Of India &Ors10, it was held that the press plays a
significant role in democracy. Courts must always upheld freedom of press. The imputation
of harm or deliberate malice was not found in the case hence the petition was allowed.
Reposting of a vast majority of retweets are offered without additional comments and are
nothing but mere adoptions. Therefore, it would be impractical to make reasonable inference
8
AIR 2006 Delhi300
9
AIR1972MAD398
10
W.P.(C) No. 130/2020
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regarding the nature of publication just like how Idina Times had just merely reshared the
video and had no intention to hurt Mr Philip’s image.
Qualified Privilege
Qualified privilege implies the statements made in good faith and without malice by
individuals who have a legitimate duty to communicate the information to others.
Direct Involvement in the publication of the content online
A person or an entity can only be held liable for the offense of defamation, if they have the
direct involvement or responsibility in the publication of the alleged defamatory material as
held by the High Court of Calcutta in Bhagat Singh V. Lachman Singh11.
In Raghav Chadha V. State12, on the question of whether retweeting would invite liability
under Section 499, held that answer to the said question is solely dependent on the ‘totality of
circumstances’ and any inference before the trial would likely cause biases.
It can be clearly seen in the that there was no direct involvement of Handbook in the
defamation of Mr Philip Dutta, it was just a medium.
The High Court had also denied Mr. Dutta's defamation suit against The Idina Times, holding
that they did not originate the content. Handbook supports this decision, emphasizing that
intermediaries should not be held liable for third-party content.
ISSUE III
11
AIR 1932 lahore 113
12
W.P. (C) No. 188/2020
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ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

It is most humbly submitted before this Hon’ble Supreme Court of Idina that the grounds for
the interception, monitoring and decryption are not reasonable restrictions on the right to
privacy provided under the Constitution of Idina.
i) Article 21 of the Constitution

Article 21 is the heart of the Constitution of Idina. It guarantees the right to life and personal
liberty to every person whether a citizen or a non citizen residing in India. It is the base of all
other rights such as freedom, equality or religion. The right to privacy has been described as
the basis of right to life and personal liberty from the very beginning.
Monitoring and decryoting data of people without their permission is a threat to their personal
liberty which is a direct attack on the fundamental rights provided by the constitution.
In Maneka Gandhi V. UOI13has widened the scope of liberty. Anything that curtails liberty
should be backed by a legislative procedure which is free from arbitrariness and is just, fair &
reasonable.
In Malak Singh V. State of Punjab 14it was held that surveillance might be intrusive and it may
encroach on the privacy of a citizen with the aim to infringe his fundamental right to personal
liberty as stated under Article 21 of the Constitution and the Freedom of Movement
guaranteed under Art 19(1)(d) which cannot be permitted.
ii) Principle of Proportionality and legitimacy

In the case of PUCL V. Union of India15the court stated that ‘Privacy is the ultimate
expression of the sanctity of the individual’.
ii) Rule 4(2) of the IT Act

In digital world if the intermediaries were given the responsibility to identify the first
originator of every information it would be equivalent to require from each and every
individual with an email account to reveal their passwords to the state so that if someone
13
AIR 1978 SC 597
14
AIR 1981 SC 157
15
AIR 1997 SC 568
21 | P a g e
engages in spamming or phishing then their account can be searched. This compromises on
the right to privacy of every individual.
In K. S. Puttaswamy v. Union of India 16, the Hon’ble Supreme Court made it clear when it
struck down the mandatory linking of everyone’s mobile phones with Aadhaar. The State’s
argument in this context was that the need to check terrorism was rejected, on the specific
basis that every person’s privacy could not be compromised on the putative basis that it
would be easier to identify a few potential terrorists (who could also be identified through
other means).
iii) Rule 4(4)
Important social media intermediaries must create automatic censoring tools in accordance
with Rule 4(4). These tools are troublesome to the extent that they might rely on artificial
intelligence technology since AI "learns" by looking at a lot of data, making judgments based
on that data based on pre-established goals, and then looking back at the results. These
intermediaries will have to gather a lot of user-generated data, including all user activity on
the intermediary's website/mobile application, in flagrant violation of the right to privacy, in
order to develop an artificial intelligence model that can identify offensive posts and
automatically remove them.
iv) Section 84A
The IT Act's Section 84A expressly gives the Central Government the authority to specify
encryption techniques and methods for the "secure use of the electronic medium and for
promotion of e-governance and e-commerce." It is humbly argued that the goal of
guaranteeing secure use of the electronic medium would not be achieved by any attempts to
weaken encryption in order to facilitate traceability. On the other hand, tampering with well-
proven encryption methods like the Signal Protocol or establishing backdoors and key escrow
schemes would jeopardize user security and privacy for all.
The UN Special Rapporteur David Kaye, who advised against the deployment of encryption
weakening technologies in his 2015 Report due to any inherent flaws, supports this
viewpoint.
In the Report of the Justice Srikrishna Committee on Data Protection where the Committee
criticized the Government for mandating low encryption standards in license agreements with
16
(2017) 10 SCC 1
22 | P a g e
telecom service providers as “this poses a threat to safety and security of the personal data of
data principals.”
The conditions upon which the government can order surveillance are mainly covered under
reasonable restrictions to free speech provided under article 19(2). But, the last one "for
investigation of any offence" is not an enumerated restriction and thus not justified and
violates a fundamental right.
The above- mentioned conditions in which an information can be surveillanced as it
possesses a reasonable restriction to free speech as per article 19(2), it still is imposed by
executive authority not by judicial power. Here, the reasonable restriction is imposed by
executive fiat and not by law. It is not even subjected to judicial scrutiny as the authority
which approves the request of surveillance is also an executive committee.
If there is apprehension of surveillance over confidential conversation between two people or

among a group, they will tend to self-censor their private association also. People who
associate themselves with a different ideology than that of the ruling government and often
criticise government policies, journalists, political leaders of opposition etc. are prone to this
drawback. If surveillance is exercised without adequate procedural safeguards it violates the
right of free speech and expression as indirectly it compels people to exercise self-restraint
with respect to private conversations.
In the case of Kharak singh vs. State of Uttar Pradesh17, 1963 apex court has explained the
effect of surveillance of free speech that, "a person under the shadow of surveillance is
certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all
his activities are watched and noted."
ISSUE IV
17
1963 AIR 1295
23 | P a g e
IS THE RIGHT TO REMAIN ANONYMOUS, A FUNDAMENTAL RIGHT

PROVIDED UNDER THE CONSTITUTION OF IDINA ?
It is most humbly submitted before this Hon’ble Supreme court that right to remain
anonymous is implicitly protected under Article 19(1)(a) of the constitution which is a
fundamental right as enshrined in Part III of the Constitution of Idina.
Anonymity allows individuals to express themselves without fear of reprisal, and is important
in those countries where freedom of expression is heavily censored. Anonymity and
Encryptionis to discuss the implications of these issues for the right to freedom of expression
in the digital era.
The Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights (ICCPR) protect freedom of expression. The UN Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression has underscored
the importance of anonymity for free expression. The Union of Idina, as part of the global
community, should uphold these international standards to protect the right to anonymity.
The IT rules, 2023 require Handbook to identify the initial originator of content breaking the
user anonymity. The right to privacy is a fundamental right as stated under Article 21 of the
Constitution of Idina.
Even in the offline world, anonymity has helped move ahead various sorts of important
events in history,” observed Jhalak Kakkar, Executive Director, Center for Communication
Governance, NLU Delhi, at MediaNama’s “Exploring User Verification” roundtable last
Thursday. “A famous example is the founding fathers of the United States, who published
many of their critiques of British colonial power anonymously. Then before the rise of social
media platforms on the Internet in the 1990s, we had bulletin boards where people would post
anonymously. That’s where we really saw the rise of people trying to freely talk and call out
people in positions of power, corporate abuse, and abuse at workplaces.”
Anonymity is considered significant in recent years for several reasons:
a. It allows individuals to explore themselves in the field of social media
24 | P a g e
b. It helps in developing social skills that can discourse with less fear of stigma,
embarrassment or reprisal.
c. It also helps in promoting freedom of expression freely, unequivocally.
d. The uncovering of a factual situation without any harmful effect to the anonymous but
beneficial to the mankind.
e. It involves one's ability to exert boundary control maintaining and protecting the right
to privacy.
f. Maintain individual autonomy which involves the chance to experiment with new
behaviors without fear of social consequences.
In the case of Kharak Singh v. State of Uttar Pradesh 18the Supreme Court held that the "right
to privacy" is an integral part of the "right to personal liberty" guaranteed under Article 21 of
the Constitution.
In the case of K.S. Puttaswamy v. Union of India (2017),19 the Supreme recognized privacy as
a fundamental right in itself.
The court further elaborated that the right to privacy includes the right to remain anonymous
and the right to control the dissemination of personal information. The court emphasized that
the right to privacy is essential for the protection of individual autonomy and dignity, and that
the state has a duty to protect this right.
Therefore, the right to remain anonymous is considered a fundamental right in India derived
from the overarching right to privacy and the right to freedom of speech and expression. This
right ensures that individuals can maintain their privacy and autonomy without fear of being
identified or having their personal information disclosed without their consent.
i) Article 19 of the Constitution
18
1963 AIR 1295
19
(2017) 10 SCC 1
25 | P a g e
In S. Rangarajan V. P. Jagjivan Ram20, SC emphasized that freedom of speech includes the

right to remain anonymous.
In McIntyre v. Ohio Elections Commission21, 514 U.S. 334 (1995) - The U.S. The Supreme
Court held that anonymous speech is protected under the First Amendment. Anonymity
enables individuals to express themselves without fear of retaliation, thereby promoting a
robust exchange of ideas
ii) Article 21 of the Constitution
In Sahara India Real Estate Corp Ltd v. SEBI 22, (2012) 10 SCC 603 the Court upheld the
importance of free speech in ensuring transparency and accountability. The ability to remain
anonymous protects individuals who expose corruption or criticize government policies,
thereby strengthening democratic governance.
iii) Section 66A of the IT Act declared unconstitutional
The IT Rules, 2023, create a climate of fear among users who might refrain from posting
controversial content. Any law that has a chilling effect on speech must meet strict scrutiny
standards.
In Shreya Singhal v. Union of India 23, The Supreme Court of India struck down Section 66A
of the IT Act, 2000, due to its chilling effect on the right of freedom of speech. The fear of
being identified and traced back to their online activities discourages users from exercising
their right to free speech, thus the IT Rules, 2023, should be considered unconstitutional.
PRAYER
20
AIR 1989 SC 2356
21
514 U.S. 334 (1995)
22
(2012) 10 SCC 603
23
(2015) 5 SCC 1
26 | P a g e
Therefore, in light of the issues raised, arguments advanced and authorities cited, it is most
humbly prayed and implode before the Hon‘ble Supreme Court Court of Idina that may be
pleased to:
i. May it please the Court to declare the Information Technology (Intermediary

Guidelines and Digital Media Ethics Code) Rules, 2023 ("IT Rules") as
unconstitutional as they violate Article 19(1)(a) and 21 of the Constitution of Idina by
imposing reasonable restrictions on the right to free speech and right to privacy.
ii. The appellant prays for an order protecting the fundamental rights of citizens,
including the right to privacy and the freedom of expression by ensuring that digital
platforms are not forced to implement invasive surveillance measures that
compromise user privacy and free speech.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted
Place: S/d_____________ Date: XX/XX/XXXX APPELLANT PROSECUTOR
27 | P a g e

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TC: P BSG2405

THE HON’BLE SUPREME COURT OF IDINA

SPECIAL LEAVE PETITION. _______/2024

FILED UNDER ARTICLE 136 OF CONSTITUTION OF IDINA

IN THE MATTER BETWEEN

MEMORIAL ON BEHALF OF THE APPELLANT

Index of Abbreviations ....................................................................................................Pg. 3

Statement of Facts ...........................................................................................................Pg.7-8

Issues Raised ....................................................................................................................Pg. 10

1. WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIATORY

2. WHETHER REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY BE

3. ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

4. IS THE RIGHT TO REMAIN ANONYMOUS A FUNDAMENTAL RIGHT

Summary of Arguments .............................................................................................Pg.11-12

Arguments Advanced..................................................................................................Pg. 13-26

1. Chaman Lal Chaman Lal v. State, (2004) 13 SCC 513

2. Arnab Ranjan Goswami v. Union of India &Ors. (2020) 14 SCC 12

3. Bhagat Singh v. Lachman Singh, (1975) 1 SCC 613

4. Raghav Chadha v. State, 2021 SCC Del 4023

5. Kharak Singh v. State of U.P., (1964) 1 SCR 332

6. Maneka Gandhi v. Union of India, (1978) 1 SCC 248

7. Malak Singh v. State of Punjab, (1981) 1 SCC 420

8. PUCL v. Union of India (1997) 1 SCC 301

10. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574

11. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)

13. Shreya Singhal v. Union of India, (2015) 5 SCC

1.2 List of Statutes

THE PRESENT MEMORIAL PUTS FORTH THE FACTS , CONTENTIONS AND

Special leave to appeal by the Supreme Court

 November: OMC released its "Annual Report of 2022," highlighting a rise in

 Early 2023: Union Government recommended MeIT to develop regulations to

 December 20: IT Rules, 2023 published in the Official Gazette.

WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIATORY

WHETHER REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY BE

ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

IS THE RIGHT TO REMAIN ANONYMOUS A FUNDAMENTAL RIGHT

ISSUE I) WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIATORY

ISSUE II )WHETHER REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY

ISSUE III) ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

ISSUE IV) IS THE RIGHT TO REMAIN ANONYMOUS A FUNDAMENTAL RIGHT

THE ARGUMENTS ADVANCED

WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARY

WHETHER THE REPOSTING OF ALLEGED NEWS BY A NEWS AGENCY BE

i) Exception to Section 499, IPC

1. Third Exception.—Conduct of any person touching any public question.—It is not

Illustration-----It is not defamation in A to express in good faith any opinion whatever

3.Sixth Exception.—Merits of public performance.—It is not defamation to express in good

Explanation.—A performance may be submitted to the judgment of the public expressly or

Direct Involvement in the publication of the content online

ARE THE GROUNDS FOR THE INTERCEPTION, MONITORING OR

i) Article 21 of the Constitution

ii) Principle of Proportionality and legitimacy

ii) Rule 4(2) of the IT Act

If there is apprehension of surveillance over confidential conversation between two people or

IS THE RIGHT TO REMAIN ANONYMOUS, A FUNDAMENTAL RIGHT

Anonymity is considered significant in recent years for several reasons:

a. It allows individuals to explore themselves in the field of social media

i) Article 19 of the Constitution

In S. Rangarajan V. P. Jagjivan Ram20, SC emphasized that freedom of speech includes the