TC- 11

11TH RCL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF BHARAT

IN THE MATTER OF

MS PRIYA KHANNA

PETITIONER

v.

SOCIAL MEDIA GIANT

RESPONDENT 1

UNION OF BHARAT
RESPONDENT 2

MEMORIAL ON BEHALF OF THE PETITIONER

 11TH EDITION RCL NATIONAL MOOT COURT COMPETITION,2023

TABLE OF CONTENTS
S.NO PARTICULARS PAGE
NO.
1. List of Abbreviations 3
2. Index of Authorities 4
3. Statement of Jurisdiction 7
4. Statement of Facts 8
5. Issues Raised 9
6. Summary of Arguments 10
7. Arguments Advanced 11
1. Whether the removal of Ms. Priya Khanna's post by Social Media 11-14

Giant constitutes an infringement upon her freedom of expression.

2. Whether the data collection and content delivery practices of Social 15-20
Media Giant violate Ms. Khanna's right to privacy.

3. Whether the actions of Social Media Giant (SMG) in taking down

21-23
Ms. Priya Khanna's post and enforcing its community guidelines

infringe upon the principles of net neutrality and fair access to

digital platforms.

4. Whether the application of automated content moderation algorithms

by Social Media Giant (SMG) to determine the removal of user- 24-26

generated content violates principles of accountability,

transparency, and due process.

8. PRAYER 27
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LIST OF ABBREVIATIONS
ABBREVATIONS EXPANSION
AIR ALL INDIA REPOTED
ANR ANOTHER
ART ARTICLE
ASSOC ASSOCIATION
& AND
AP ANDHRA PRADESH
CONSTI CONSTITUTION
DPDPA
ECHR EUROPEAN CONVENTION ON HUMAN RIGHTS
FCC FEDERAL COMMUNICATIONS COMMISSION
GDPR GENERAL DATA PERSONAL REGULATION
GOVT GOVERNMENT
HON’BLE HONORABLE
ICCPR INTERNATIONAL CONVENANT OF CIVIL AND POLITICAL
RIGHTS
IT ACT INFORMATION TECHNOLOGY ACT

ISP INTERNET SERVICE PROVIDER

NET NETWORK
ORS OTHERS
RETD RETIRED
SC SUPREME COURT
SMG SOCIAL MEDIA GIANT
UOI UNION OF INDIA
UP UTTAR PRADESH
UDHR UNIVERAL DECLARATION OF HUMAN RIGHTS

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INDEX OF AUTHORITIES

S.NO. CASES

1. Kaushal Kishor v. State of U.P ; WP (Crl) No. 113/2016

2. Assn of Victims of Uphaar Tragedy v. Union of India, 2003 SCC OnLine Del 377

: 2003 ACC 114

3 S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204 1989 SCC (2) 574 JT 1989

(2) 70 1989 SCALE (1)812

4.. Kishori Mohan v. State of West Bengal, A.I.R. 1972

S.C. 1749

5. Kharak Singh V. State of UP AIR 1963 SC 1295

6. Pratap Bhanu Mehta v. Union of India

7.
Anoop M.K. v. Union of India, W.P. (Crl.) No. 196/2014

8.
Prajwala V. Union of India , W.P. (Civil) No. 341/2008]

9.
Faheema Shirin R.K. v. State of Kerala, AIR 2020 Ker 35,

MANU/KE/3799/2019.

10.
Anuradha Bhasin V. UOI AIR 2020 SC 1308

11.
Shreya Singhal v UOI , AIR 2015 SC 1523;

12.
Mahesh Bhatt v UOI , 2009 AIR 2138

13.
Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of

Bengal, 1995 AIR 1236 1995 SCC (2) 161

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JT 1995 (2) 110 1995 SCALE (1)539

14.
A.K. Gopalan V. State of Madras, AIR 1950 SC 27.

15.
Sharda v. Dharampal, (2003) 4 SCC 493,521, para.71I

16.
Maneka Gandhi v. Union of India; AIR 1978 SC 597

17.
Justice K.S. Puttaswamy v. UOI, AIR 2017 SC 4161

18.
Navtej Singh Johar v. UOI; 2018 SCC OnLine SC 10

20.
Competition Commission of India vs. Google (2018):

21.
Sakal Papers V. UOI 1962 3 SCR 842

22.
Facebook Antitrust Lawsuits (2020)

23.
Unni Krishnan V. State of UP 1993 AIR 217

24.
X V. UOI & ors. , W.P.(CRL) 1082/2020

25.
Swami Ramdev & Ans. vs. Facebook, Inc. & Others 2019 SCC OnLine Del 10701

26.
Rajat Prakash V. Instagram 2020

27.
State of UP V. Raj Narain 1975 AIR

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S.NO. BOOKS

1. MP Jain, Indian Constitutional Law, Wadhwa, Fourth Ed

2. Narender Kumar , Constitutional law of India , (Allahabad law Agency, 10th

edn.,2021)

S. NO. STATUES

1. TheConstitutionofIndia,1950

2. The Information & Technology Act, 2000

3. The Information Technology Rules, 2011

4. Digital Personal Data Protection Act, 2023

S. NO. ONLINE DATABASE

1. AIR ONLINE (ALL INDIAN REPORTER)

2. EBC

3. JSTOR

4. LIVE LAW

5. SCC ONLINE

6. MANUPATRA

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 11TH EDITION RCL NATIONAL MOOT COURT COMPETITION,2023

STATEMENT OF JURISDICTION

Writ Petition No. of 2023

The petitioner has approached the Hon’ble Supreme Court of Bharat under Article 321 of

Bharat .

1
Article 32 - Remedies for enforcement of rights conferred by this Part:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

This article provides individuals with the right to directly approach the Supreme Court to enforce their
fundamental rights and grants the Supreme Court the power to issue various types of writs to protect these
rights. It is a fundamental provision in the Indian Constitution for the protection of citizens' rights.

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STATEMENT OF FACTS

Ms. Priya Khanna is a well-known writer and social activist in Bharat, with a significant online
following. Her platform, which she uses for critique of economic, political, and social issues, has
garnered a large and engaged audience.

1. On July 24, 2023, Ms. Khanna posted a critique of a major government policy, the "Gender
Equity and Inclusion Act," on her Social Media Giant (SMG) profile. Her post quickly gained
popularity, becoming the fifth trending topic on SMG's platform.

2. However, just two days later, on July 26, 2023, SMG removed her post, citing a violation of
their community guidelines. This removal ignited a massive online debate about free speech
and privacy.

3. Ms. Khanna, in an interview with ADP News on July 29, 2023, expressed her disapproval of her
post's removal. She contended that her critique of the policy was well within the bounds of
constructive criticism and public discourse, exercising her constitutionally protected freedom of
expression.

4. Ms. Khanna also raised concerns about her data privacy rights, accusing SMG of collecting
and using her personal data without her informed consent. She argued that SMG's practices
violated her right to privacy and autonomy over her personal information.

5. Furthermore, Ms. Khanna pointed out that this wasn't the first time SMG had faced
controversies. The company had been previously embroiled in issues related to data privacy
practices in other countries, casting doubts on the platform's commitment to user privacy and
raising concerns about the unchecked power of social media platforms.

6. The "Gender Equity and Inclusion Act" aimed to address systemic gender disparities across
various sectors, including education, employment, and social services. It proposed measures to
empower women, promote gender-balanced representation, and eliminate discriminatory
practices. However, the policy's specifics and potential consequences were subjects of intense
discussion, which Ms. Khanna sought to contribute to with her candid critique on
the SMG platform.

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STATEMENT OF ISSUES

1.

WHETHER THE REMOVAL OF MS. PRIYA KHANNA'S POST BY SOCIAL

MEDIA GIANT CONSTITUTES AN INFRINGEMENT UPON HER FREEDOM

OF EXPRESSION ?

2.

WHETHER THE DATA COLLECTION AND CONTENT DELIVERY

PRACTICES OF SOCIAL MEDIA GIANT VIOLATE MS. KHANNA'S RIGHT

TO PRIVACY.

3.

WHETHER THE ACTIONS OF SOCIAL MEDIA GIANT (SMG) IN TAKING

DOWN MS. PRIYA KHANNA'S POST AND ENFORCING ITS COMMUNITY

GUIDELINES INFRINGE UPON THE PRINCIPLES OF NET NEUTRALITY

AND FAIR ACCESS TO DIGITAL PLATFORMS.

4.

WHETHER THE APPLICATION OF AUTOMATED CONTENT MODERATION

ALGORITHMS BY SOCIAL MEDIA GIANT (SMG) TO DETERMINE THE

REMOVAL OF USER-GENERATED CONTENT VIOLATES PRINCIPLES OF

ACCOUNTABILITY, TRANSPARENCY, AND DUE PROCESS?

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SUMMARY OF ARGUMENTS

1. Whether the removal of Ms. Priya Khanna's post by Social Media Giant

constitutes an infringement upon her freedom of expression ?

It is humbly submitted before the Hon’ble court that Social Media Giant by removing the post of Ms.
Priya Khanna infringement her right to freedom of speech and expression as ‘freedom of speech and
expression’ has a wide connotation. It includes the freedom of the propagation of ideas, their publication
and circulation. Every citizen has right to hold an opinion.

2. Whether the data collection and content delivery practices of SMG violate Ms. Khanna's
right to privacy.

The RTP is a fundamental right in Bharat and includes the protection of personal data and the autonomy
to control one's information. Hence by collection of data and content delivery practices of Social Media
Giant violated right to privacy of Ms. Priya.

3. Whether the actions of SMG in taking down Ms. Priya Khanna's post and enforcing its
community guidelines infringe upon the principles of Net neutrality and fair access to
digital platforms.

It is humbly submitted before the Hon’ble court that SMG’s action in taking down the post infringe
upon the principle of net neutrality and fair access to digital platform as Net neutrality principles aim to
ensure equal access and treatment of content and services on the internet.

4. Whether the application of automated content moderation algorithms by Social Media

Giant (SMG) to determine the removal of user-generated content violates principles of
accountability, transparency, and due process.

It is humbly submitted that Social Media Giants (SMGs) are using automated content moderation
algorithms to remove user-generated content, raising concerns of violating key principles. First,
accountability is compromised as SMGs rely on opaque algorithms, making it unclear who is
responsible for content removal. Second, transparency is lacking as users are often left in the dark
regarding the criteria and reasons for content removal. Third, due process is not adequately upheld, with
little opportunity for users to appeal decisions or challenge the algorithms' actions. These issues
undermine freedom of speech and expression and hinder meaningful discourse. The petitioner contends
that greater accountability, transparency, and due process must be enforced to safeguard users' rights
and prevent overzealous content removal by SMGs.

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ARGUMENTS ADVANCED

1. WHETHER THE REMOVAL OF MS. PRIYA KHANNA'S POST BY

SOCIAL MEDIA GIANT CONSTITUTES AN INFRINGEMENT UPON

HER FREEDOM OF EXPRESSION ?

It is humbly submitted before the honorable court of SC that the removal of Ms. Priya Khanna’s post by
social media giant constitutes an infringement upon her FOSE as art 19 provides that Provides freedom
of speech which is the right to express one’s opinion freely without any fear through
oral/written/electronic/broadcasting/press. Freedom of expression includes Freedom of Press. It covers
the blogs and websites too.
Every citizen has a right to hold an opinion and to be able to express it, including the right to receive
and impart information. The expression ‘freedom of speech and expression’ has a wide connotation. It
includes the freedom of the propagation of ideas, their publication and circulation.

Maneka Gandhi v.UOI 1 : Freedom of speech and expression has no geographical limitation and it
carries with it the right of a citizen to gather information and to exchange thought with others not only
in India but abroad also.

Sakal Papers v. UOI2 - This case emphasized the importance of free speech and a diverse range of
opinions in a democracy, setting a precedent for protecting the right to express dissenting views.
In the case of Shreya Singhal v.UOI3, the Indian Supreme Court held that freedom of speech and
expression includes the right to express one's opinions and ideas without the fear of censorship. The
removal of her post is in direct conflict with this principle.

In State of UP v. Raj Narain4, the Supreme Court concluded that Article 19(1)(a) of the Constitution
bestows upon every citizen the right to indulge in free speech, as well as the right to receive and spread
information on topics of public importance.
he freedom to collect and communicate information is included in Article 19(1)(a) of the Constitution of
India, according to Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket
Assoc. of Bengal 5 . For each person, the print media is a strong instrument for disseminating and
receiving information.

1
AIR 1978 SC 597
2
(1962) 3SCR 842
3
AIR 2015
4
AIR 865 1975 SCR\
5
1995 AIR 1236
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The Supreme Court decided in Mahesh Bhatt v. UOI & Anr 6 . that free speech is one of the
foundations of the Indian Constitution and that it upholds it. The right to free speech and expression is a
crucial component of a democratic framework. In order to maintain a functioning democracy, citizens
must be informed and educated. Any incursions against free speech, as well as opposing and divergent
views of expression, as well as any laws enacted in the manner of putting restrictions, will lead to
curbing on free speech.

1.1: SMG’s removal of the post violate its own community guidelines or terms of service.

In this case, Ms. Khanna contends that SMG's removal of her post violated its own community
guidelines or terms of service. In the case of Rajat Prakash v. Instagram7 , it was established that
social media platforms are expected to adhere to their own policies and guidelines when taking action
against user-generated content. If SMG's removal was not consistent with its guidelines, this could be
considered a breach of contract and an infringement on Ms. Khanna's freedom of expression.

Ms. Priya Khanna's freedom of expression is protected under the fundamental rights guaranteed by the
Consti of Bharat. The freedom of expression is a cornerstone of democracy, allowing citizens to express
their views and opinions, especially on matters of public concern. This includes the right to critique
government policies.

In this case, SMG's decision to remove Ms. Khanna's post, which critiqued the "Gender Equity and
Inclusion Act," raises concerns about potential infringement on her freedom of expression. While SMG
is a private company, it operates in a space where it serves as a public forum for discussions and
opinions.

1.2: The removal of the post stifle a legitimate exercise of free speech under the Constitution of
Bharat?

^: The removal of Ms. Khanna's post stifled a legitimate exercise of free speech, which is essential for
democratic discourse and the free exchange of ideas.
^: The Constitution of Bharat protects not only popular or majority opinions but also dissenting and
minority views. Such diversity of expression is vital for the democratic fabric of the nation.

Sakal Papers v. UOI8- In this case, the Supreme Court upheld the importance of diverse and dissenting
opinions as an integral part of democratic expression.

6
Writ Petition (Civil) Nos. 18761 and 23716/2005 and 7410-11/2006, High Court of Delhi (2008).
7
2020
8
(1962) 3 SCR 842
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1.3: Was the post a form of political expression, given its critique of a government policy?

The post in question was indeed a form of political expression, given its critique of the "Gender Equity
and Inclusion Act." Ms. Khanna's intention was to contribute to political discourse and raise
awareness about the policy's implications.

Political expression includes any form of expression related to government policies and political issues.
Ms. Khanna's post was a direct critique of a government policy, making it a form of political expression.

Freedom of speech and expression is broadly understood as the notion that every person has the natural right to
freely express themselves through any media and frontier without outside interference, such as censorship, and
without fear of reprisal, such as threats and persecutions.. Similarly, Article 19 (1) (a) of the Constitution of
Bharat also confers on the citizens of Bharat the right “to freedom of speech and expression”. It includes the
right to propagate or publish the views of other people.

New York Times Co. v. Sullivan9- In this landmark case from the United States,
the court recognized the importance of political expression and the need for robust
debate on public issues.

9
76 U.S. 254 (1964)

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1.1 ARBITRARY RESTRICTION OF FREEDOM OF SPEECH & EXPRESSION

Even though the Internet seems to provide direct and unconditional access for persons

wishing to exercise their freedom of speech in public. In addition, user content may be

deleted, filtered, or blocked at the discretion of the platform, in accordance with the terms of

the contract it concluded with the users.

Recently, social media platforms have come under scanner for their arbitrary and

inconsistent application of content moderation policies. While Facebook removed a

paragraph of Declaration of Independence10 and the iconic photograph of the Napalm

girl from its platform on the ground of violation of its speech code, it failed to remove posts

relating to holocaust denial and hate-speech against the Rohingyas11.

As much as they provide a platform for speech, they also possess the power to deny the same

as is evidenced by the removal of Alex Jones’ account by all major social media

platforms and Twitter’s suspension of accounts of Sanjay Hegde and some Dalit activists

In, Anoop M.K. v. Union of India12 ,the Kerala High Court, in this case, held that the

removal of a Facebook post without proper justification and without giving the user an

opportunity to be heard violated the principles of natural justice and the right to freedom of expression.

10
The Guardian, Facebook labels declaration of independence as ‘hate speech’, July 5, 2018, available at
https://www.theguardian.com/world/2018/jul/05/facebook-declaration-of-independence-hate-speech
11
Reuters, U.N. investigators cite Facebook role in Myanmar crisis, March 12, 2018, available at
https://www.reuters.com/article/us-myanmar-rohingya-facebook/u-n-investigators-cite-facebook-role-in-
myanmar-crisis-idUSKCN1GO2PN

12
W.P. (Crl.) No. 196/2014

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2. WHETHER THE DATA COLLECTION AND CONTENT DELIVERY

PRACTICES OF SOCIAL MEDIA GIANT VIOLATE MS. KHANNA'S RIGHT

TO PRIVACY.

It is humbly submitted before the honorable court that the data collection and
content delivery practice of social media giant violates Ms. Khanna’s RTP.
Privacyright is subset of right to life and personal liberty.

2. 1 RIGHT TO PRIVACY HAS BEEN VIOLATED

It is humbly submitted that the law of the right to privacy is a recognition of the individual’s

right to be let alone and have his personal space inviolate. Initially SC took a

narrow view of Art. 2115The SC defined privacy as “the state of being free from intrusion or

disturbance in one’s private life or affairs.”16 While analyzing the scope of the right to the named

fundamental right17

The right to Privacy is now a fundamental right u/a 21 of the Constitution i.e. Right to Life and

Personal Liberty, as held in the case of Justice K.S. Puttaswamy v. UOI.18 In the case of Navtej

Singh Johar v. UOI19, it was held that privacy is a ‘concept of identity’ which is not only sacred

but is also in recognition of the quintessential facet of humanity in person’s nature”

15
A.K. Gopalan V. State of Madras, AIR 1950 SC 27.
16
Sharda v. Dharampal, (2003) 4 SCC 493,521, para.71I
17
Maneka Gandhi v. Union of India; AIR 1978 SC 597
18
Justice K.S. Puttaswamy v. UOI, AIR 2017 SC 4161
19
Navtej Singh Johar v. UOI; 2018 SCC OnLine SC 10

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Art 6 of the INTERNATIONAL CONVENANT OF CIVIL AND POLITICAL

RIGHTS (ICCPR) provides that “every human being has the inherent right to
life. This right ought to be protected by the law and no one shall be deprived of
his life arbitrarily.” this right seeks to protect the unjust deprivation of human life
by the state. It prescribes that no one can be deprived of his/her life, except as per
the law.

In India, the right to life has been granted a very broad connotation. As per Art 21
and its judicial interpretations, ‘life’ is not simply just the physical act of breathing.
It extends beyond mere animal existence and includes a canopy of other elements
as well. It includes the right to live with dignity, right to health, right to
livelihood, right to privacy, and a bundle of other similar rights.

Cases related to right to life

Unni Krishnan vs. State of AP20: In this case, the SC upheld the expanded
interpretation of the right to life.

In Kharak Singh v sate of UP21 it is clearly explain and states the meaning
of life that is isn’t merely animal existence. It is branch that extends to all the
facilities that is needed in order to enjoylife.

20
1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290.
21
AIR 1963 SC 1295
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2.1.1 Unauthorized use of Personal and Sensitive data of Priya Khanna

Digital technologies allow firms to access vast amounts of data, which they might leverage to

increase their profitability or improve the performance of their broader business networks.

Data monetization also involves harnessing insights to create value-added features for other

clients (i.e., extended data wrapping). Facebook, for example, makes money by providing data

analytics features to advertisers based on user data on its social network platform

Specifically, data monetization means the firm exploits data for their direct or indirect

economic benefits. These practices might include applying data analytics–based insights to

develop new products and services for the customers whom the data represent .

Social media privacy includes personal and sensitive information that people can find out from

user accounts. Information also may be released unknowingly through tracking cookies, which

track the information of a user's online activity, including webpage views, social media sharing

and purchase history. All information is then gathered and sorted by user segments,

which data brokers sell for marketing purposes.

2.1.2 Social media giant failed tests for establishing the right to privacy

To establish right to privacy, three tests have to be fulfilled viz. Existence of Law, Legitimate

goal and the Test of Proportionality in case of KS Puttaswamy v. Union of India22

• Existence of Law:. Social media Giant collecting collecting and utilizing her personal

data, including her browsing history and online activities, to create a user profile for

22
(2017) 10 SCC 1

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targeted customers is done not for complying with any existing law but has rather violated the

provisions of law.

• Test of legitimate Aim: In the instant case, there are no legitimate interests involved

in sharing of data but rather the personal interests of Social Media Giant for remaining

in the market.

• Test of Proportionality: Proportionality ensures a rational nexus between the objects

and the means adopted to achieve them. Balancing stage requires a balance to be

struck between two fundamental rights in conflict. None of the above-stated tests are

getting satisfied in the instant case.

Social Media Giant has no possible reason for sharing the personal information of its users except

their personal interest to make their platform engaging and this all violated Mrs. Khanna’s right to

privacy and autonomy over her personal information

2.1.3 Data stored outside Bharat – threat to national security

6. There is a need to safeguard the rights of data subjects as it allows for access to the data

when there is a legitimate interest involved. The presence of data servers within the territory

of Bharat, means that they would then have to follow the laws of Bharat. The physical

presence of the data gives the Government the ability to subject the entities to the rules and

regulations here. This reduces the problem around conflicting jurisdictional claims and eases

regulatory compliance.

7. Data localisation reduces the possibility of a country's citizens being subject to

surveillance by foreign governments because data within one's territory is easier to access.

When foreign governments can easily access sensitive data of another state's citizens, it also

becomes a national security threat for that state and this threat can be avoided through data

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localisation.23 In the instant case, the data is stored in USA24, such an action of storing data

outside, has an effect of lesser surveillance by Bharat Government and acts as a threat to

national security.

2.2 INFORMATION TECHNOLOGY ACT HAS BEEN VIOLATED

8. The information technology, 2000 has been violated as A) section 43A has been

violated, B) Information Technology (Reasonable security practices and procedures and

sensitive personal data or information) Rules, 2011 has been violated, and C) Digital Personal

Data Protection has also been violated

2.2.1 VIOLATION OF SECTION 43A and 72 of IT act and IT rules, 2011

9. Section 43A provides where a body corporate, possessing, dealing or handling any

sensitive personal data or information in a computer resource which it owns, controls or

operates, is negligent in implementing and maintaining reasonable security practices and

procedures and thereby causes wrongful loss or gain to any person, such body corporate shall

be liable to pay damages by way of compensation to the person so affected.

10. In the instant case, all the essentials are being fulfilled as the information collected

includes browsing history and other personal information of Priya Khanna which were used

by the Social Media Giant for their advantage, to increase their user base. Information on

how users interact with others (including businesses), mobile device information, etc. comes

within the ambit of the definition of sensitive personal data25

11. The Central Government is authorized by the virtue of section 87(2)(ob) to come up with

23
CMET (2018) 102 Data Localisation and Enforcement of the Right to Privacy, Vishal Rakhecha and
Chittkrishna Thakkar)
24
Clarification no. 35
25
Information Technology(Reasonable security practices and procedures and sensitive personal data or
information) Rules, Rule 3, 2011

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rules and regulations that may provide for reasonable security practices and procedures &

sensitive personal data or information under section 43A of the IT Act,2000 has come up with

Information Technology Rules in the year 2011. The said practice and terms of service violate

Rule 5, Rule 6, and Rule 8 of the Information Technology (Reasonable security practices and

procedures and sensitive personal data or information) Rules, 2011.

2.2.2 Violates Digital Personal Data Protection Act, 2023

12. The important feature that serves as a foundation of the Act is the concept of ‘purpose’ for

which the data has been obtained by the Data Fiduciary. The Act squarely outlines that the

data is to be collected, processed, and stored only for the purpose for which it is required

unless the falls under one of the lawful exemptions as per Section 4 of the Act .

13. The Data Fiduciaries are further obligated to provide Data Principals with a notice26

informing them about the purpose for which the data proposed to be processed; the manner in

which the Data Principals may exercise her rights and make complaints with the Data

Protection Board . The Data Fiduciaries are required to obtain verifiable consent from the

Data Principal. Thus, Data Fiduciaries can process data only when they obtained free,

specific, informed, unconditional and unambiguous consent with a clear affirmative action

The right to privacy is another fundamental right protected under the Consti of Bharat.
This right includes autonomy over one's personal information andcontrol over how it is
collected and used

_______________________________________________________
26
Section 5 of the Digital Personal Data Protection Act, 2023

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3. WHETHER THE ACTIONS OF SOCIAL MEDIA GIANT (SMG) IN TAKING

DOWN MS. PRIYA KHANNA'S POST AND ENFORCING ITS COMMUNITY
GUIDELINES INFRINGE UPON THE PRINCIPLES OF NET NEUTRALITY AND
FAIR ACCESS TO DIGITAL PLATFORMS.

It is most humbly submitted that taking down of Ms. Priya Khanna’s post by SMG clearly infringes

upon the principles of net neutrality and fair access to digital platform as

3.1 Ms. Khanna’s post was not violative of community guidelines

The terms of service and content policies that online platforms make their users adhere to include
restrictions on hate speech, harassment and copyrighted material. The platforms can only moderate
and remove content including posts, comments, images, and videos, that
violates these policies. Since Ms. Khanna’s post was within the bounds of expressing her ideas and
opinions that every user has the right to express, without falling in any of these above mentioned
criteria, it was understandably not violative of the community guidelines of SMG.

Automation content moderation often leads to false positives and impacts user rights.
Since, Ms. Khanna’s post has been taken down by an ACMA without any contextual understanding or
perspective, it is highly probable that the post was in fact not offensive in reality. This lack of human
oversight has lead SMG to take takedown a fairly standard post.

3.2 Infringement of net neutrality and fair access to digital platforms

Net neutrality principles ensure that all data on the internet is treated equally without
discrimination.
While the removal of a specific post does not directly relate to net neutrality, it raises
questions about howcontent moderate ion practices are applied.

Net neutrality is the principle that Internet service providers (ISPs) should treat all
data on the Internet equally. It means that ISPs should not discriminate or charge
differently based on user, content, website, platform, or application. Net neutrality
ensures that users have equal access to all types of content without any restrictions or
preferential treatment.

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Here are some key principles of net neutrality:

1. Equal Treatment: All data on the Internet shouldbe treated the same,
regardless of its source or destination. ISPs should not block or throttle (slow
down) access to specific websites or services.

2. No Paid Prioritization: ISPs should not create “fast lanes” or prioritize certain
content or services in exchange for payment. In other words, they should not
give preferential treatment to data from companies thatpay extra.

3. Transparency: ISPs should be transparent about their network

management practices, allowingusers to understand how their data is
being treated.

4. No Content-Based Discrimination: ISPs should not discriminate against

content based on its type or source. This means they should not favor their
own content or services over those of competitors.

In the context of the case, issue three raises questions about whether SMG’s
actions, including the removal of Ms. Khanna’s post and enforcement of
community guidelines, comply with these principles of net neutrality.

It’s important to examine whether SMG treated Ms. Khanna’s content differently
from other users’ content based on the nature of the content or the viewpoint
expressed.

SMG should establish and communicate community standards that are fair and respectful of

users' rights. These standards should be applied consistently and should not be overly restrictive.

Platforms should be continuously working to improve their policies and practices to ensure

that their users are treated fairly and respectfully, irrespective of their backgrounds and beliefs.

Therefore, expressing one’s ideas should not be restricted.

Competition Commission of India vs. Google (2018): The Competition Commission of India

initiated an investigation into Google's alleged abuse of its dominant position in the market. The

case examined Google's search practices and their impact on fair access and competition.

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United States v. Google (2020) : The U.S. Department of Justice filed a lawsuit against Google,

alleging antitrust violations related to its search and search advertising monopoly. The case

focused on whether Google's dominance hindered fair access and competition.

Facebook Antitrust Lawsuits (2020)27: The Federal Trade Commission (FTC) and multiple state

attorneys general filed antitrust lawsuits against Facebook, alleging anti- competitive behavior.

The cases aim to address concerns about fair access to the social media platform.Concluding, the

counsel submits that the takedown of Ms. Khanna’s post is not a well explained move by SMG,

and moreover, it infringes the principles of net neutrality and

fair access to digital platforms in the above mentioned ways.

27 https://www.nytimes.com/2020/12/10/technology/the-facebook-lawsuits-explained.html

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4. WHETHER THE APPLICATION OF AUTOMATED CONTENT MODERATION

ALGORITHMS BY SOCIAL MEDIA GIANT (SMG) TO DETERMINE THE
REMOVAL OF USER-GENERATED CONTENT VIOLATES PRINCIPLES OF
ACCOUNTABILITY, TRANSPARENCY, AND DUE PROCESS?

It is most humbly submitted that the application of ACMAs by SMG to determine the removal of

user-generated content violates principles of accountability, transparency, and due process.

4.1 Automated content moderation algorithms are highly unreliable

Automated content moderation algorithms vary in complexity and effectiveness. The reliability of

these tools to identify content across a range of platforms is limited and, Unlike humans, algorithms

lack “critical reflection.” In Shreya Singhal v Union of India28 case, the primary issue was the

constitutionality of Section 66A, which raised concerns about freedom of speech and expression on

the internet and the potential for misuse because of its vague and overly broad interpretation.

Automated content moderation algorithms are commonly used social

media platforms for efficiency. However, they must be transparent,

accountable, & provide due process for users.

The transparency of SMG's algorithms is a crucial factor. Users should be aware of how these

algorithms work, and if they are not, it could raiseconcerns about accountability.

Due process means that users should have an opportunity to appeal decisions and

have their content reviewed by humans. If SMG's automated algorithms did not

allow for such appeals or humanreviews, it could be seen as a violation of due

process.

28
Shreya Singhal v Union of India(2015) 5 SCC 1

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The case of Anuradha Bhasin v. UOI 29
Highlighted the importance of accountability and transparency in content
moderation practices. Social media platforms should have mechanisms in
place to allow users to understand and challenge decisions regarding the
removal of their content. If SMG's automated content moderation algorithms
lack transparency and do not provide users with an opportunity for appeal or
human review, this could be seen as a violation of principles of accountability,
transparency, and due process.

4.1.1 Algorithms lacked transparency and accountability in their

decision-making process

SMG's automated content moderation algorithms lacked transparency and

accountability, making it difficult for users to understand how content
decisionswere reached.

Transparency in automated content moderation is essential for users to have

confidence in the platform's decision-making. When the process is opaque, users
cannot assess whether the removal of their content was justified.

4.1.2 : There was no opportunity for due process and human

review before content removal

SMG's content moderation procedures did not provide users with an

opportunity for due process and human review before their content was
removed.

Due process allows users to challenge content removals and have their cases
reviewed by human moderators who can consider context and intent. The
absence of due process can lead to arbitrary and unjustcontent removals.

____________________________________________
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WRIT PETITION (CIVIL) NO. 1031 2020

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4.1.1 : The automated moderation inadvertently lead to the removal of

legitimate content, causing harm to users

The automated moderation implemented by SMG inadvertently led to

the removal of legitimate content, causing harm to users' ability to
express them freely.

Automated moderation systems, while efficient, can misinterpret content,

leading to the removal of content that should be protected under free speech
principles. This harms users and limits their ability to engage in
meaningful discourse.

Unintended Consequences of Automated Content Moderation - Research

and studies have shown thatautomated moderation can sometimes remove
legitimate content, causing harm to users.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this Hon’ble Court maybe be pleased to adjudge, hold and declare that

1. That the removal of post of Miss Priya Khanna infringes her freedom of

expression .

2. The data collection and content delivery practices of social media giant

violate Ms. Khanna's Right to Privacy.

3. The actions of Social Media Giant (SMG) in taking down Ms. Priya Khanna's

post and enforcing its community guidelines infringes upon the principles of

net neutrality and fair access to digital platforms.

4. The application of automated content moderation algorithms by social media

giant (SMG) to determine the removal of user-generated content violates

principles of accountability, transparency, and due process.

And/or

The Petitioner additionally prays that the Hon’ble Court may pass any order as it deems fit in

the interest of justice, equity & good conscience.

And for this the Petitioner shall duty bound, ever pray

Respectfully submitted by,

(Counsel(s) for the Petitioner )

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