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TeLawgram

’22 Week 5(01/04 – 07/04)

Hello everyone! The past week has seen several developments in various realms of law! We travel from Delhi to Oklahoma to examine John Doe orders, competition law investigations abortion laws, international criminal trials and much more! Happy reading!

National 

1) CCI Orders Investigation into Price Parity and Platform Neutrality by Zomato and Swiggy.

The Competition Commission of India (hereinafter “CCI”) has ordered a probe into suspected anti-competitive practices by Zomato and Swiggy. This decision is in light of a complaint filed by the National Restaurants Association of India (hereinafter “NRAI”) alleging anti-competitive practices, including deep discounting, exclusive tie-ups, preferential treatments, platform neutrality and imposing price parity terms by the food delivery apps. Regarding platform neutrality, the NRAI held that the restaurant partners had to commit exclusively to the respective platforms. Regarding price parity, it was observed that the restaurant partners were not allowed to maintain lower prices on other aggregators. The NRAI also held that these companies have their own cloud kitchens and list their own private labels on their platforms, acting as intermediaries and market participants, thus creating an inherent conflict of interest. The Commission found a prima facie case that warranted investigation to determine whether there has been a contravention of provisions under Section 3(1) of the Competition Act, 2002, which deals with anti-competitive agreements causing appreciable adverse effect on competition,  read with Section 3(4), which specifies the types of agreements, thereof. 

Suggested Readings:

  1.  Click here to read the Order.
  2. K. Hema, Competition Law in E-Commerce: A New Paradigm, 1 NUALS CCLP Newsletter (2021).
  3.  Deepti Pandey and Sushant Singh, Assessing the Competition Law Impact of Platform Price Parity Agreements (June 2, 2020), https://cbcl.nliu.ac.in/competition-law/assessing-the-competition-law-impact-of-platform-price-parity-agreements/.
  4. Sarab Lamba and Ramkrishna Panigrahi, Platform Neutrality: An Ignored Manipulation of Antitrust (June 10, 2020), https://tclf.in/2020/06/10/platform-neutrality-an-ignored-manipulation-of-anti-trust/.
  5. Khushi Bhardwaj and Apurva Vats, Price parity clauses: The MMT-Oyo debacle (June 5, 2020), http://www.nlujlawreview.in/price-parity-clauses-the-mmt-oyo-debacle/.
  6. Kamakshi Puri, Platform Neutrality by E-Commerce Platforms: A Competition Law Requirement? (May 23, 2020), https://indiacorplaw.in/2020/05/platform-neutrality-by-e-commerce-platforms-a-competition-law-requirement.html.

2) Bombay High Court Sentences Jail Superintendent, Who Denied Parole Selectively, To 7 Days in Prison.

The Bombay High Court found a Nagpur Central Prison Superintendent guilty of contempt and sentenced them to 7 days simple imprisonment along with a fine of Rs. 5000, for selectively denying prisoners emergency parole during the Covid-19 pandemic. The Superintendent had denied 35 poor prisoners, most of whom could not afford to challenge the denial, their residual fundamental right of emergency parole while releasing six ineligible prisoners on emergency parole. The Court observed that the act of the official amounted to suffocating the rights guaranteed under Articles 14 and 21 of the Constitution. It was held that refusal of parole must be based on definite reasons to ensure that there wasn’t any arbitrariness. The Court’s primary concern was the selective application and willful disobedience of the binding precedent of Milind Ashok Patil and Others v. State of Maharashtra, affecting the liberty of the prisoners and subversion of the rule of law. It can be noted that the maximum amount of fine provided under Section 12(1) of the Contempt of Courts Act is two thousand rupees. However, the Court held that considering Article 215 of the Constitution, which provides the powers of the High Court to punish for contempt, no limitation under Section 12 of the Contempt of Courts Act is applicable as the power contemplated by Article 215 of the Constitution cannot be abridged or be controlled by any statute. The Court also held that rendering an apology would not frustrate contempt proceedings.

Suggested Readings:

  1. Click here to read the judgement.
  2. Prachi Pallavi, Non-release of Prisoners in Bihar on Interim Bail/Parole during the Pandemic: Violation of Article 21 (May 30, 2021), http://crlreview.in/non-release-prisoners-bihar-interim-bail-parole-the-pandemic-violation-article-21/.
  3. Tanish Arora and Hardik Batra, Parole in India – Current state and the Need for Reforms- I (Feb. 23, 2021), https://criminallawstudiesnluj.wordpress.com/2021/02/23/parole-in-india-current-state-and-the-need-for-reforms/.
  4. Tanish Arora and Hardik Batra, Parole in India – Current state and the Need for Reforms- II (Feb. 24, 2021), https://criminallawstudiesnluj.wordpress.com/2021/02/24/parole-in-india-current-state-and-the-need-for-reforms-ii/.
  5. Rajat Sinha, Sentencing without Parole: Assessing prisoners right to Dignity in India (June 21, 2019), https://thelawblog.in/2019/06/21/sentencing-without-parole-assessing-prisoners-right-to-dignity-in-india/.
  6. Peter Wagner and Emily Widra, Five ways the criminal justice system could slow the pandemic, Prison Policy Initiative (Mar. 27, 2020), https://www.prisonpolicy.org/blog/2020/03/27/slowpandemic/

3) Delhi High Court orders Facebook, Twitter and YouTube to take down 30 profiles and channels similar to Aaj Tak

The plaintiffs filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 seeking a permanent injunction against various unknown parties and to restrain them from infringing trademarks and copyrights on social media websites. There plaintiffs requested the Court to direct intermediaries such as Google, Twitter and YouTube to take down certain content. The plaintiffs argued that their reputation was not dependent only on the mark “Aaj Tak” but extends to other “formative marks” including “Sports Tak”, “Yoga Tak” etc. The counsels for Google, Twitter and YouTube argued that they were only intermediaries and therefore could not take down content unless they received an order from the Court according to Rule 3(1)(d) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Delhi High Court ordered the intermediaries to provide the basic subscriber information details of the anonymous defendants and serve notice upon them through email to comply with Order XXXIX Rule 3 of the CPC. The Court directed the anonymous defendants through a John Doe order, to take down the infringing content within 36 hours, failing which, the relevant social media platform could take down the infringing content. 

Suggested readings:

  1. Click here for the order. 
  2. Ajay Sharma, John Doe Orders in the Indian Context (Oct. 25, 2017), https://rmlnlulawreview.com/2017/10/25/john-doe-orders-in-indian-context/.  
  3.  Payel Chaterjee, ‘What’s in a name’… John Doe arrives in India, https://www.nishithdesai.com/fileadmin/user_upload/pdfs/-What-s_in_a_name-_-_John_Doe_arrives_in_India.pdf (last visited Apr. 08, 2022). 
  4. Ananth Padmanabhan, Can Judges Order ISPs to Block Websites for Copyright Infringements? (Part 1) (Jan. 30, 2014), https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1
  5. Ananth Padmanabhan, Can Judges Order ISPs to Block Websites for Copyright Infringements? (Part 2) (Feb. 05, 2014), https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2
  6. Ananth Padmanabhan, Can Judges Order ISPs to Block Websites for Copyright Infringements? (Part 3) (Feb. 14, 2014), https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3#:~:text=In%20the%20absence%20of%20a,such%20action%20is%20not%20even

4) Information and Broadcasting Ministry blocks various YouTube channels and profiles by exercising its emergency powers under the IT Rules, 2021

On April 5, 2022, the Ministry of Information and Broadcasting, through a press release stated that it had, for the first time exercised its emergency powers under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to block a number of Indian YouTube channels. According to the Ministry, 22 YouTube news channels, 3 Twitter accounts, 1 Facebook account and 1 news website were blocked as they were used to spread “coordinated disinformation” on security related aspects of the country. Moreover, according to the press release, the posts included certain “anti-India” content on the Armed Forces, Jammu and Kashmir etc. Some of the fake news regarding India originated from Pakistan as well. The Ministry’s action comes in the backdrop of directions being issued to block as many as 78 YouTube channels since December, 2021.

Suggested Readings:

  1. Click here for the press release.
  2. Ankoosh Mehta, Srinivas Chatti & Rupal Jaiswal, From Harbour to Hardships? Understanding the Information Technology and Digital Media Ethics Code) Rules, 2021Part I (Apr. 15, 2021), https://corporate.cyrilamarchandblogs.com/2021/04/from-harbour-to-hardships-understanding-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-part-i/.  
  3. Ankoosh Mehta, Srinivas Chatti & Rupal Jaiswal, From Harbour to Hardships? Understanding the Information Technology and Digital Media Ethics Code) Rules, 2021Part II (May 11, 2021), https://corporate.cyrilamarchandblogs.com/2021/05/from-harbour-to-hardships-understanding-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-part-ii/
  4. Ankoosh Mehta, Srinivas Chatti & Janvi Manek, From Harbour to Hardships? Understanding the Information Technology and Digital Media Ethics Code) Rules, 2021 Part III (Sept. 24, 2021), https://corporate.cyrilamarchandblogs.com/2021/09/from-harbour-to-hardships-understanding-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-part-iii/.  
  5. Tanmay Singh & Abhinav Sekhri, India’s New Intermediary Guidelines (June 1, 2021), https://verfassungsblog.de/it-rules-21/.  
  6. Aditi Mishra & Kavya Arora, Countering Fake News: A Critical Appraisal of the Intermediary Guidelines (Amendment) Rules, 2018 (July 8, 2018), https://lawschoolpolicyreview.com/2020/07/08/countering-fake-news-a-critical-appraisal-of-the-intermediary-guidelines-amendment-rules-2018/

International 

1. European Court of Justice rules against indiscriminate data retention by Police

In a case concerning overreaching data retention and usage by police; upholding the spirit of Data protection policies espoused by the European Union (EU), the European Court of Justice (ECJ) ruled against the provisions of the Communications (Retention of Data) Act, 2011. The Court asserted that by doing so, it strived to uphold the fundamental right of every EU citizen – respect for private life and the protection of personal data. Though entangled with about a decade of procedural history, the pertinent facts of the case include the prosecution of a man on a charge of murder. The police had resorted to using evidence adduced from his traffic and location data, and other personal communication channels such as phone calls. The accused thereafter filed a case in the Court of Appeal against such improper acquisition and admission of evidence by the trial court. He also took the initiative to file a challenge, at the Irish High Court, against the aforementioned Irish Data law and its dissonance with the European Union laws. A ruling obtained in his favour prompted the prosecution to approach the Supreme Court challenging both these decisions; resulting in this instant referral from the Irish Supreme Court to the European Court of Justice. The ruling assertively stated that the general and indiscriminate retention of traffic and location data exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society. While the Irish law allowed for the obtainment of such information for any serious crimes, threats to national security or saving human life; the procedural authorisation was merely a “disclosure request” issued by a Chief superintendent or a higher rank officer. The corresponding EU law, however, allowed for only narrow exceptions wherein such data can be harnessed only in the presence of serious threats to national security. 

Suggested readings: 

  1. Click here to read the judgement 
  1. Click here to access the official European Union Agency for Fundamental Rights’ database of country-wise data retention laws 
  2. Maria Helen Murphy, Data Retention in the Aftermath of Digital Rights Ireland and Seitlinger, 24 Irish Criminal Law Journal 105 (2014)
  3. Niklas Vainio and Samuli Miettinent, Telecommunications data retention after Digital Rights Ireland: legislative and judicial reactions in the Member States, 23 International Journal of Law and Information Technology 290 (2015)
  4. Francesca Bignami, Protecting Privacy Against the Police in the European Union: The Data Retention Directive, GWU Law School Public Law Research (2013)
  5. Federico Fabbrini, The EU Charter of Fundamental Rights and the Rights to Data Privacy: The EU Court of Justice as a Human Rights Court, iCourts Working Paper Series 19 (2015)
  6. Elspeth Guild and Sergio Carrera ,The Political and Judicial Life of Metadata: Digital Rights Ireland and the Trail of the Data Retention Directive, CEPS Liberty and Security in Europe Papers 65 (2014)

2) Singapore Court of Appeal rejected a plea against the execution of an accused with an intellectual disability

While general principles of criminal law, as well as international law, agree upon the mitigating nature of mental disabilities, the Singapore Court of Appeal has come under fire from international rights groups such as Amnesty and Human Rights Watch for its disregard towards the same. Singapore’s drug law – the Misuse of Drugs Act (MDA), 1973, is infamous for being one of the strictest drug regulating laws in the world. Among its disproportionately severe penalties is the provision mandating a death sentence for matters involving 15 grams or greater amounts of diamorphine. The sentenced was arrested at the age of 21 in 2009 for having strapped against his thighs, a bundle of heroin weighing 43 grams. The disproportionality of the punishment aside, the convict was also assessed to be a person of low intelligence quotient. An assessment taken pegged his IQ at 69, which is considered less than adequate for regular cognitive assessments. The defence arguments included attempts to convince the court that the convict was coerced into the crime owing to his low IQ. However, the Court dismissed these submissions claiming they lacked both factual and legal basis. The Court additionally clarified that in Singapore law, age meant only chronological age and that mental age held no ground. While rejecting the civil appeal, the Court also held that the court cannot conduct or rely on a psychiatric assessment of the convict at this stage. The former would amount to improper procedure and the latter would reveal only the convict’s present mental state and not the state of mind at time of commission of the offence, stated the Court. Thereafter, the Court chose to believe that the appeal was merely a blatant and egregious abuse of Court process, lacking good faith and intended to cause delay of execution. 

Suggested readings: 

  1. Click here to read the ruling
  2. Po Jen Yap, The ‘Dead’ Constitution: Crime and Punishment in Singapore, 40 Hong Kong Law Journal 177 (2010)
  3. Benjamin Joshua Ong, The constitutionality of ouster clauses: Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112, 19 Oxford University Commonwealth Law Journal 157 (2019)
  4. Kumaralingam Amirthalingam, Prosecutorial Discretion and Sentencing in Singapore, 18 Oxford University Commonwealth Law Journal 46-72 (2018)
  5. Mohamed Saran and Muhammad Khairul Fikri, Singapore’s Misuse of Drugs Act – A Primer (Dec. 19, 2020), https://nuscriminaljustice.com/singapore-misuse-of-drugs-act-a-primer/ 

3) Darfur War Crimes Suspect’s Trial Opens at the International Criminal Court

The International Criminal Court (hereinafter ‘ICC’) has opened the first trial for atrocities committed in Darfur, nearly 20 years after violence ravaged the Sudanese region. The trial comes amid an increase in violence in Darfur since a joint United Nations and African Union peace force ended its operations in the region more than a year ago. Thirty-one accusations of war crimes and crimes against humanity have been filed against a suspected former head of the pro-government Janjaweed militia. The charges were denied by Ali Muhammad Ali Abd-al-Rahman. He is the first individual to be tried by the International Criminal Court (ICC) for a conflict that resulted in the deaths of 300,000 people and the displacement of over two million people. After 13 years on the run, he surrendered to the ICC in 2020. The ICC has charged him and militias under his command with rape, torture, death, and pillaging. UN Secretary-General Kofi Annan formed the International Commission of Inquiry on Darfur in response to Security Council Resolution 1564. In January 2005, the Commission reported to the UN that there was reason to believe that crimes against humanity and war crimes had been committed in Darfur, and that the situation should be referred to the ICC. The United Nations Security Council, using its jurisdiction under the Rome Statute, submitted the situation in Darfur to the Prosecutor of the International Criminal Court in resolution 1593 on March 31, 2005.

Suggested Readings:

  1. Click here to read the ICC Press Release.
  2. Click here to read the Statement of the ICC Prosecutor.
  3. Click here to read the Case Information Sheet.
  4. Alexandre Skander Galand, The ICC Appeals Judgment on Abd-Al-Rahman Jurisdictional Challenge: A Foreseeable Turn to Substantive Justice? (Nov. 22, 2021), https://www.ejiltalk.org/the-icc-appeals-judgment-on-abd-al-rahman-jurisdictional-challenge-a-foreseeable-turn-to-substantive-justice/
  5. Gabriel M. Lenter, UN Security Council Referrals to the ICC and the Principle of Legality (Nov. 12, 2021), https://www.ejiltalk.org/un-security-council-referrals-to-the-icc-and-the-principle-of-legality/
  6. Philipp Kastner, The ICC in Darfur – Savior or Spoiler, 14 ILSA J. INT’l & COMP. L. 145 (2007).

4) Oklahoma House approves bill banning abortions except in medical emergencies

On April 5, 2022, the Oklahoma House passed a bill that would outlaw nearly all abortions in the state and make performing the procedure a felony punishable by prison time, making it one of the most extreme state-level abortion bans ever passed—and if signed into law, an upcoming Supreme Court ruling could allow the bill to take effect. If signed into law, the proposal will go into force in August, 90 days after the legislature adjourns in May. With the exception of medical emergencies, the bill prohibits abortion in the state. The measure punishes violators with a fine of up to $100,000 and a sentence of up to ten years in jail. Many states have implemented copy-cat or otherwise stringent abortion restrictions since the United States Supreme Court refused to enjoin the Texas statute in Whole Women’s Health v. Jackson in December 2021. In a lawsuit challenging Mississippi’s restriction on abortion after 15 weeks of pregnancy, the Supreme Court is reviewing whether states should be allowed to ban abortion. It is a case that many worry may offer the Court a chance to overturn Roe v. Wade, which has protected women’s constitutional right to abortion for nearly 40 years.

Suggested Readings:

  1. Click here to read the bill.
  2. Click here to access the bill information. 
  3. Michael P. Vargo, Confused by Casey: The Oklahoma Supreme Court’s Puzzling Abortion Rights Decision, 38 OKLA. CITY U. L. REV. 291 (2013).
  4. Cohen DS, The New Abortion Battleground, 123 Columbia Law Review (2022).
  5. Kelly Davis, Valuable or Viable: Reproductive Justice and the Texas Abortion Ban (Sep. 9, 2021), https://ohrh.law.ox.ac.uk/valuable-or-viable-reproductive-justice-and-the-texas-abortion-ban/

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