State says social media giant’s view flies in the face of its own primary business model to commercialise users’ data

The Tamil Nadu government on Thursday launched an offensive against social media giant Facebook, saying that concerns voiced by the company in the Supreme Court about citizen privacy fly in the face of its own “primary business model” to commercialise users’ data.

The State was replying to a petition filed by Facebook to transfer a pending case in the Madras High Court dealing with the mandatory linking of social media accounts with Aadhaar or any other government-authorised identity proof. Other identical petitions have been filed in Madhya Pradesh and Bombay High Courts.

Article 21

Facebook had moved the Supreme Court to transfer the cases in the various High Courts to the Supreme Court for a final decision. Facebook and WhatsApp had strongly objected to Aadhaar linkage, saying it would affect the privacy of its users. It said a nine-judge Bench of the Supreme Court had upheld privacy as a fundamental right under Article 21 of the Constitution. A Bench led by Justice Deepak Gupta had sought Tamil Nadu’s response and restrained the Madras High Court from passing any orders for the time being.

The Tamil Nadu government, in a detailed 24-page reply drawn by Additional Advocate General Balaji Srinivasan and settled by State Advocate General Vijay Narayan, said Facebook’s concern about privacy was a “red herring”.

It said an argument about privacy “does not lie in the mouth of the petitioner [Facebook], whose primary business model is the use and commercialisation of users’ data, which is in turn shared with businesses and political parties for targeted advertising”.

“In this regard, the petitioner [Facebook] has been in the news globally for its role in the ‘Cambridge Analytica’ scandal,” the State said in its reply filed by advocate T. R. B. Sivakumar.

‘Fallacious reference’

The State said the “fallacious” reference to privacy was raised by Facebook to distract the Supreme Court from its own non-compliance with the Indian law.

The actual case before the Madras High Court, the State contended, relates to the prevention and detection of crimes and traceability of originator information to counter fake news and mob violence in the State. The High Court is looking into effective compliance by social media companies like Facebook with the provisions of the Information Technology Act to help detect cyber crimes. The High Court, Tamil Nadu said, is not concerned with Aadhaar linkage. Thus, there is no need to transfer the case.

By filing this transfer petition, Tamil Nadu said the “whole attempt” of Facebook was to “evade compliance with Indian law”.

As proof, the State showed how the Chennai Cyber Cell had sent social media companies 1,940 requests for information in connection with various investigations between 2016-18. Among these, 885 requests were sent to Facebook, 101 to Gmail, 155 to YouTube and 11 to WhatsApp.

All the State Police got in reply was the I.P. (Internet Protocol) log details on 484 requests. Among these, 211 were sent by Facebook, 268 by Gmail, four by YouTube, one by Twitter and zero by WhatsApp. Tamil Nadu said that the companies refused to part with information in 1,456 cases.

‘Comply with laws’

“While the service of social media companies are used throughout India and the world, it is essential that these companies comply with the laws of each State in which they operate and not try to evade their responsibility,” Tamil Nadu submitted.

The State referred to how WhatsApp (a subsidiary of Facebook), cognisant of the issue of fake news, had set up an “India tipline” number in April this year to help users cross-check information received in their mobile phones. This was, however, done without involving the government agencies.

The State has also filed an application to modify the August 20 order of the Supreme Court in order to allow the Madras High Court to continue to hear and decide the case.

The apex court is scheduled to hear the petition on September 13. The Supreme Court has so far laid stress on the need to find a balance between the right to online privacy and the right of the State to detect people who use the web to spread panic and commit crimes.