Meet the man who took WhatsApp to the Supreme Court

Russian interference in the US elections via Facebook. The Cambridge Analytica data breach. “Fake news” entering the lexicon. Data security and privacy becoming the need of the hour. Mob violence sparked off by rumours and spread via WhatsApp forwards. A growing drive towards data localisation. The past two years have shaken the world, with governments in India and elsewhere sitting up and taking notice of social media and internet companies. More specifically, trying to rein in and regulate them—ensuing in standoffs with Facebook, Google, Twitter, and others. But Virag Gupta is way ahead of the curve.

For at least six years now, Gupta, a Supreme Court lawyer, and others working with him have taken on the likes of Facebook, Orkut (a once-popular, now defunct social media network), Google and Uber. And most recently, WhatsApp—Gupta’s organisation, an NGO called the Centre for Accountability and Systemic Change (CASC), filed a petition against the Facebook-owned messaging company and the Indian government in the Supreme Court. The petition accused WhatsApp of failing to comply with regulations on data storage and not appointing a grievance officer.

“We are not against any individual organisation, but we are working that the new legal system must evolve along with the new digital economy,” he says over the phone. One carefully measured, lawyerly word at a time.

To that end, Gupta and CASC have many a grouse. That digital businesses in India get unfair advantages; that foreign companies aren’t paying taxes here; that many social media platforms are not properly regulated; that Indians’ data on said platforms is not secure.

And—very, very specifically—that these companies do not have “grievance officers” (we’re going to be seeing this term a lot) in the country.

“What action can be taken against those [companies] having no physical presence in India?”

Virag Gupta, lawyer, in a column in the newspaper DNA

Gupta embodies a drive towards both privacy and protectionism—and against what he sees as “neocolonialists spread all across the globe” and “the new-age East India Companies”. A push to safeguard people’s data from foreign companies not “abiding by Indian laws”, with a strong nationalistic flavour. Gupta, for his part, is firm that he’s apolitical. However, at least one of his associates has links to the Hindu nationalist Rashtriya Swayamsevak Sangh (RSS), the ideological mentor of Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP).

A frequent face on news television debates on cyber law—conspicuous by his greying hair, trademark square spectacles and a thick moustache—the 49-year-old lawyer is emblematic of a certain type of legal activism. One which has the potential to shape policymaking on digital rights and regulations, and more. And has only been rising in the wake of India’s rapidly growing tech ecosystem.

The grievances of man

Gupta’s made his first public entry into the fight over internet regulations in a 2012 case filed by KN Govindacharya, a 75-year-old former BJP leader. The case, fought in the Delhi High Court, was against Facebook, Google, and others. Gupta represented Govindacharya.

They argued that foreign internet companies weren’t paying their fair share of taxes in India. That the government “is not taking any action to safeguard the national interest and the sovereignty of the country”. That children were “illegally” creating social media accounts, and that it was a national security issue that Indian users’ data was being stored abroad.

Victory came in 2013. The court declared that Facebook et al. had to, wait for it, appoint grievance officers, according to a certain clause in the Information Technology (Intermediaries Guidelines) Rules, 2011.

This demand for grievance officers became a common refrain in petition after petition filed by Gupta, Govindacharya and CASC.

In 2014, after an Uber driver was accused of raping a passenger, Govindacharya, through Gupta, filed a case in the Delhi High Court, saying that the online taxi platform—like many others—had not appointed grievance officers. The fact that Uber was allowed to operate despite this, their petition said, reflected a “collapse of governance in the country”. And again, they pointed out, Uber and other internet companies should pay taxes in India on all income earned within the country.

In late August, CASC—which was registered as a think tank under the Indian Trusts Act last year—filed a petition in the Supreme Court against WhatsApp. The company, it said, had a well-documented fake news problem, with rumours spread through the messaging service often resulting in violence and deaths. WhatsApp, it said, didn’t comply with Indian tax laws, doesn’t cooperate with intelligence agencies. And of course, it had no grievance officer.

Grievance officers, if CASC is to be believed, may hold the key to every problem.

From mob violence…

… to taxation…

… to unemployment.

In response, WhatsApp did appoint a grievance officer for India in September. But Gupta wasn’t satisfied—the new officer, he said, was based in the US, not India. “WhatsApp has an Indian arm and an Indian office, WhatsApp is ready for data localisation. Why is WhatsApp reluctant to appoint a grievance officer in India?” Gupta thunders during our phone conversation.

For its part, the company has responded that nowhere in the rules does it say that a grievance officer has to be in India. Just that there has to be one. And the battle continues to this day, with CASC moving the Supreme Court to add the Reserve Bank of India to the case over the fact that WhatsApp hasn’t yet complied with the banking regulator’s order that payments services (which WhatsApp is rolling out in India) have to store all transaction details locally.

Just why does a “grievance officer” matter?

For one, having a presence in India can give groups such as CASC a handle to target foreign companies—especially digital businesses—over complaints of all sorts, says Satyajit Sarna*, a Delhi-based independent lawyer.

Or, says Kian Ganz, a lawyer and founder of legal news website Legally India, it could be a purely strategic move. To pressure companies like WhatsApp, putting the onus on them to justify themselves. “If it was a slam dunk, open-and-shut case, then they [CASC] might not have had to make that point… But it’s definitely a question that the RBI will be interested in as well, in terms of future regulation.”

Behind the scenes

For someone often embroiled in public interest litigation (PILs, in Indian legal parlance), and publicly vocal about topics ranging from data privacy to environmental safety to governance, Gupta is rather reluctant to talk about himself or CASC. He would, he says, much rather focus on issues.

But a picture emerges from the public record.

At least four years, from 2001 to 2005, spent working with CESTAT—the Customs, Excise and Service Tax Appellate Tribunal. Followed up by spending the following year with the finance ministry, working on indirect tax and legal issues. Alongside all this, a bachelor’s degree in law from Delhi University, after which he left government service and entered the private sector.

Today, he’s a partner at a small, Delhi-based law firm called VAS Global, and specialises in cyber law. Apart from tax, environment, real estate and constitutional law. His work on public interest cases, either through CASC or along with other people, is over and above that.

“He’s a practitioner… He’s not like M.L. Sharma or one of the other guys who don’t have work. He has work, he runs an office, and this [legal activism] is something he does along with that,” says a lawyer who works on digital rights, speaking on condition of anonymity. (The reference is to Manohar Lal Sharma, a lawyer infamous for his PIL work.)

“At times that I’ve spoken to him, I find his arguments a little too technical to be convincing,” says a former lawyer, now a journalist covering the Supreme Court. “But his knowledge on the subject seems thorough.”

In his own words, he’s unconventional. And going by his LinkedIn page, he “has a penchant for taking up challenging and never-been-done-before tasks”.

“He’s active in the Supreme Court and in the legal fraternity. He’s well respected in the legal community, and known to be a good lawyer. He keeps coming on TV and writing in magazines [and newspapers],” says another Supreme Court lawyer, also on condition of anonymity, adding that he’s built a reputation as a crusader of sorts.

Sheet calculus

Using 1.5 line spacing instead of double spacing ’causes 25 per cent savings of paper’, and smaller fonts 30%, says CASC’s petition to the Supreme Court

A reputation that may somewhat be bolstered by a slew of petitions that CASC has filed outside of the cyber/digital law space since being registered as a non-profit think tank just last year. (It has Gupta as founder, Gaurav Pathak, an associate at VAS Global, as general secretary, and no full-time employees, according to Pathak. “We are completely non-political, non-sectoral and an independent organisation. We receive a lot of support from students, who come from national law schools, engineering and other fields to intern with us,” he added in an email.)

These range widely in scope: A PIL in the Supreme Court asking it to use double-sided prints for legal documents and petitions, saying it would save millions of litres of water and thousands of trees. A letter to the Prime Minister asking the government not to give free medical care to bureaucrats who smoke and drink (“a healthy bureaucracy will ensure availing fewer medical facilities, thereby reducing the expenditure,” Gupta said). A legal notice to the government demanding that political parties be told to set up internal committees to deal with sexual harassment (a rule that applies to all organisations in India), which was taken up a day later.

“Ultimately, what are we doing? I can say in one word that this is a process of self-actualisation,” says Gupta.

The voice of the people?

The PIL as a tool for legal activism has a long history in India, stretching back decades. The format allows anyone to file a petition regarding issues in “public interest” to the high courts and the Supreme Court.

One of the best examples of legal activism affecting policy on digital rights and regulations, perhaps, was what came to be known as the Shreya Singhal case. Singhal, a student at the time, filed a petition in the Supreme Court against Section 66A of the Information Technology Act, which effectively made posting “offensive” content (a broad term that could cover virtually anything) online a criminal act. In the wake of her petition, the court ruled that Section 66A was unconstitutional and struck it down in 2015.

“Regulators are often caught on the back foot about developments in tech”

Kian Ganz, publishing editor, Legally India

One of the rulings in the judgement was that online “intermediaries”—including social media platforms such as Facebook and search engines like Google—could not be held liable for the content that end-users upload. Not unless they’re ordered to remove a particular piece of content by the courts.

It’s a decision that the government and the judiciary itself has had to grapple with in the years since, writes Apar Gupta (no relation of Virag Gupta), executive director of the Internet Freedom Foundation. A struggle between censorship of potentially dangerous or illegal material and the openness of the internet and protecting “intermediaries” from liability.

“Sometimes, like some PILs and some petitioners, they’re just doing it for publicity,” says Ganz of Legally India. But they can still often be valuable, particularly when it comes to the tech industry. “A lot of tech moves so fast that regulation doesn’t really exist. I think these activists, lawyers and NGOs are fulfilling a fairly valuable role and actually acting as a check and balance on tech moving too fast.”

The flipside, says Gupta, is that courts are geared towards adversarial outcomes—plaintiff versus defendant, petitioner versus respondent. Legal measures like PILs have to be carefully weighed. “If you’re going to a court and wanting a policy outcome, it can be dangerous sometimes.”

Where does that place the likes of Virag Gupta? Interestingly enough, one of the main points of CASC’s petition against WhatsApp is that social media networks—intermediaries, remember?—need to be held accountable for the content they host. A move that the government is also considering, alongside demands that companies such as WhatsApp and Facebook open local offices.

At the same time, the RBI has ordered financial services firms to store data in Indian servers (and companies are moving to comply), and the central government has been moving towards taxing more online services.

This ties in nicely with the stance held by Gupta and Govindacharya, the former BJP leader, who is also associated with the RSS. (Govindacharya has been a vocal critic of political parties including his own, and has a fraught relationship with the leadership of both the RSS and the BJP, which is currently in power.)

Both of them have argued against government employees using private email services like Gmail and social media platforms like Twitter and Facebook in a PIL, citing a threat to national security.

The government announced in 2015 that it would institute a new email policy for its staff, in another victory for Gupta, though he and others were sceptical about how effective it would be.

One more win came in the form of the Election Commission issuing a new set of rules on social media use during poll campaigns in 2013. This was something Gupta and Govindacharya had petitioned the commission for. It’s another issue they aren’t done with just yet; the WhatsApp petition makes mention of political parties gathering hundreds of thousands of “cyberwarriors” to “spread misinformation” and influence voters through social media.

Not reachable?

‘Every user has a number on WhatsApp but WhatsApp has no number through which its user can contact it for grievance redressal,’ says the CASC petition

The government’s response to both this and the wider issue of fake news, the petition says, is the rather unsatisfactory “knee-jerk reaction” of instituting internet shutdowns to combat unrest—“equivalent to killing the patient to contain the disease”.

What then do Gupta and his allies see as the cure? According to CASC’s Pathak, it’s “digital governance”. Taxing internet companies, thereby reducing “inequality as per the Oxfam report”. Servers on Indian soil, which will “boost employment and economic growth”.

“Compliance of Law is must by these companies to end the data colonization as also suggested by Mr Mukesh Ambani [chairman of Reliance Industries Ltd and Asia’s richest individual] to PM [Narendra] Modi during Gujarat Vibrant summit,” he says in an email.

So where exactly does CASC come in?

“We are trying to bring the 21st century legal reform in all the manner. Because our Constitution evolved in 1947, when there was no internet, no mobile, no digital platforms,” says Gupta.

Along the way though, he’s made an art form of poking the big dragons of the tech world.

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