With IT Act Proceedings Ongoing, Karnataka HC Directs 'Proton Mail' To Keep Blocking Abusive Email IDs Upon Intimation By 'Moser'

In turn, a Division Bench of Acting Chief Justice V Kameswar Rao and Justice CM Joshi directed Proton to block the allegedly offensive emails as expeditiously as possible, noting that proceedings under Section 69A of the IT Act and Rule 10 of the IT Rules, 2009, are currently ongoing against the company.

It clarified that this process will continue till the next date of hearing (August 28). It added that as and when any fresh offensive emails are received in the meantime, Moser shall forward the details to Proton's designated email ID (abuse@proton.me), and upon receiving such information, Proton shall block the source.

The Bench orally observed,

"If the emails are coming to your client (Moser) from a domain which is outside Proton, they won't have control over it. But if it is emanating from the same domain of Proton, definitely they have control over it, whether they are in India or outside, it is their headache, they have to block it. Please inform Proton about the domain from which you are receiving the mail; they will block it".

The bench passed this order in the post-punch session when Moser's counsel (Advocate Jatin Sehgal) informed the Court that their employees were still receiving offensive mails and that the company had also filed a complaint in this regard with the police.

Furthermore, when he pointed out that Proton shares information with the Swiss Government but not with Indian authorities, the Court added that the other aspects (regarding the larger issue) will be taken care of by the Indian Government, and it was not the concern of Moser.

"The Government of India is at liberty to block their entry in the country itself, they have that mechanism with them…you just inform them (Proton) about the offending material and they will block it", the Court told Sehgal, the counsel for Moser.

Importantly, while Proton sought 36 hours to act upon each such complaint, the Court directed that "offending mails shall be blocked as expeditiously as possible".

Earlier in the day, the High Court was informed by ASG Arvind Kamath that apart from the two URLs initially flagged by the single judge in the order, several other instances of non-compliance under the IT Act and its Rules had been discovered during a wider scrutiny of Proton's operations.

Pursuant to that, the Centre issued notices to Proton AG regarding these shortcomings, and the company had submitted responses. A final decision, the ASG submitted before the bench, would be taken within eight weeks.

Read more about the Centre's submissions here: Centre Flags IT Act Violations By Proton Mail, Says Response Being Analysed; Decision Within 8 Weeks, Karnataka HC Told

Background of the matter

For context, on July 1, the Court had issued notice on Proton AG's appeal challenging the single-judge's order passed in a plea filed by M MOSER DESIGN ASSOCIATES (INDIA) PVT LTD, which had complained of repeated targeting of its female employees through the issuance of e-mails containing obscene, abusive and vulgar language and sexually coloured and derogatory remarks allegedly sent via Proton Mail.

The single-judge had directed the Union to initiate proceedings against Proton AG under Section 69A of the IT Act, read with Rule 10 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

The Court had further ordered that until such proceedings are taken up and concluded by the Centre, the offending URLs shall be blocked forthwith.

During the course of the hearing, the Counsel for Moser Design, Advocate Jatin Sehgal, referred to Section 75 of the IT Act, contending that once an intermediary moves its servers outside India and refuses to provide access to the Indian authorities, it cannot be permitted to operate in the country.

He submitted that Proton had shifted its servers to Russia after the 2022 IT Rules came into force and argued that the company was not cooperating with Indian authorities.

“Multiple countries have banned them as they don't provide access. All illegal activities are happening,” he submitted.

To this, the Acting Chief Justice questioned the counsel for the appellant as to whether Proton AG, having moved its servers outside India, was not amenable to Indian jurisdiction.?

Moser's counsel replied in the negative as he contended that the company was in violation of the IT framework by failing to provide server access.

In response to this, counsel for Proton (Advocate Manu Kulkarni) submitted that Proton was now actively participating in the ongoing 69A proceedings before the Centre and had submitted its responses.

Regarding the aspect of its server being outside India, he submitted that there is no requirement in law that the server must be in India in order to operate in India. He also stated that the location of the server had no bearing on the maintainability of the writ petition under Article 226 of the Constitution.