Centre Flags IT Act Violations By Proton Mail, Says Response Being Analysed; Decision Within 8 Weeks, Karnataka HC Told

The Division Bench of Acting Chief Justice V Kameswar Rao and Justice CM Joshi took note of the Centre's submission that apart from the two URLs initially flagged by the single judge, several other instances of non-compliance under the IT Act and its Rules had been discovered, and separate notices had been issued to the company.

These issues, the Union Government (represented by Additional Solicitor General Arvind Kamath) clarified, were being dealt with independently and were beyond the scope of the present writ appeal.

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.

Challenging that very order, Proton has moved the HC.

Now, when the appeal matter was taken up for hearing today, ASG Arvind Kamath informed the Court that proceedings under Section 69A IT Act had since been initiated against Proton Mail, and two URLs have already been blocked in compliance with the single judge's order.

Importantly, he further submitted that since the centre has discovered other non-compliances of the IT Act and the rules by Proton, they were put to notice after noting certain other shortcomings (beyond the scope of the appeal), to which they have responded, and a decision in the matter will be taken after analysing the same within 8 weeks.

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.

When asked whether the Centre had issued any notice specifically regarding the server being outside India, Proton's counsel said he would verify the same but added that he was not aware of any such notice having been received.

The Centre, through ASG Kamath, clarified that such issues, relating to server location or broader compliance with IT rules, are part of the ongoing inquiry and such issues indeed fall outside the scope of Proton's present appeal.

The hearing will continue post-lunch.