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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
INDEX
S. No. Particulars Page No.
1. URGENT APPLICATION
2. NOTICE OF MOTION
3. MEMO OF PARTIES
4. COURT FEES
5. SYNOPSIS AND LIST OF DATES AND
EVENTS
6. CIVIL WRIT PETITION UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA
FOR ISSUANCE OF WRIT OF
MANDAMUS OR SUCH OTHER WRIT OR
AN APPROPRIATE WRIT OR ORDER OR
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1
DIRECTION TO THE RESPONDENTS
ALONG WITH SUPPORTING AFFIDAVIT
AND APPLICATION UNDER SECTION 151
CPC FOR EXEMPTION FROM FILING
CLEAR LEGIBLE COPIES OF THE
ANNEXURES/DOCUMENTS
7. ANNEXURE P-1
Copy of screen shot of the online portal
registration home Signup page of Respondent
No. 3.
8. ANNEXURE P-2 (Colly)
Copy of the email for Un-subscription dated
18th December 2016 & 12th May 2017 sent to
Respondent No.3 by the Petitioner
Copy of the records of Petitioner Mobile no,
registration as DND (Do NOT DISTRUB).
9. ANNEXURE P-3
Copy of the printout of TRAI (Telecom
regulatory authority of India) website on
procedure of complaint for UCC messages.
10. ANNEXURE P-4 (Colly)
Copy of the extract of Respondent No. 3, 4 & 5
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privacy policy clause terms here enclosed
herein as Annexure P-4
Copy of the screen short of Petitioner
Respondent no.2 online portal account with
unsubscribe option
11. ANNEXURE P-5 (Colly)
Copy of the additional subscription check box
screenshot of Respondent No. 3.
Copy of Respondent No. 3 & Petitioner email
communication dated between March 11 and
March 30th 2017.
12. ANNEXURE P-6 (Colly)
Copies of Petitioner’s mobile UCC messages
received from Respondent No. 3, 4 and 5.
13. ANNEXURE P-7 (Colly)
Copies of the Respondent no. 3 and 4 website
terms and conditions clause
14. ANNEXURE P-8 (Colly)
Copies of legal notices along with original
postal receipts issued by Petitioner to
Respondent no. 3, 4 and 5 & their respective
replies.
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15. ANNEXURE P-9
Copies of Respondent No. 3 email subscription
letter
16. ANNEXURE P-10
Copies of screenshot user account next stage
pre auto check method of subscription of
Respondent No. 3 for its users
17. ANNEXURE P-11
Copies of server ownership details of
Respondent No. 3
18. ANNEXURE P-12 (colly)
Copies of live chat transcript between
Respondent no. 4 and the Petitioner
Copies of Petitioner order bill from Respondent
no.4
19. ANNEXURE P-13
Copies of Respondent No. 4 server ownership
details
20. ANNEXURE P-14 (colly)
Copies of relevant judgement from EUCJ,
Japan & Indian judgement.
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21. ANNEXURE P-15
Copies of email communication with
Respondent No. 5 officer Sanjeev Kumar
22. ANNEXURE P-16 (colly)
Copies of email communication between with
Respondent No.5 and Petitioner
Copies of screen shot of complaint resolved
response messages by Respondent no.5 to
petitioner
23. ANNEXURE P-17 (colly)
Copies of screen shot of UCC messages
complaint by Petitioner to Respondent no.5
Copies of email communication from ASCI on
complaint against Respondent No.5
24 Annexure P-18
Copies of print out of complaint
acknowledgement to Respondent No.1 through
central grievances portal against Respondent
No.3, 4 & 5
Copies of print out of complaint response to
petitioner from Respondent No.1 through
central grievances portal
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25 Annexure P-19
Copies of Petitioner’s mobile UCC messages
received from other Companies
26 Annexure P-20
Copies of print out of complaint
acknowledgement to Respondent no.2 central
grievances portal against Respondent No. 3, 4
& 5
Copies of print out of Respondent No.2
response forward to petitioner.
Filed By:
Advocate in person
Arvind Singh
630, 1st floor, Dr. Mukherjee
Nagar,Delhi 110009
Contact: +91 9205385276 Email id:
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
Note: No similar or connected matter is pending or filed before
any court
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
SHORT INDEX
S. No. Particulars Page No.
1. URGENT APPLICATION
2. NOTICE OF MOTION
3. MEMO OF PARTIES
4. COURT FEES
5. SYNOPSIS AND LIST OF DATES AND
EVENTS
6. CIVIL WRIT PETITION UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA
FOR ISSUANCE OF WRIT OF
MANDAMUS OR SUCH OTHER WRIT OR
AN APPROPRIATE WRIT OR ORDER OR
Bar & Bench (www.barandbench.com)
1
DIRECTION TO THE RESPONDENTS
ALONG WITH SUPPORTING AFFIDAVIT
AND APPLICATION UNDER SECTION 151
CPC FOR EXEMPTION.
7. ANNEXURE P-1
Copy of screen shot of the online portal
registration home Signup page of Respondent
No. 3.
8. ANNEXURE P-2 (Colly)
Copy of the email for Un-subscription dated
18th December 2016 & 12th May 2017 sent to
Respondent No.3 by the Petitioner
Copy of the records of Petitioner Mobile no,
registration as DND (Do NOT DISTRUB).
9. ANNEXURE P-3
Copy of the printout of TRAI (Telecom
regulatory authority of India) website on
procedure of complaint for UCC messages.
10. ANNEXURE P-4 (Colly)
Copy of the extract of Respondent No. 3, 4 & 5
privacy policy clause terms here enclosed
herein as Annexure P-4
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Copy of the screen short of Petitioner
Respondent no.2 online portal account with
unsubscribe option
11. ANNEXURE P-5 (Colly)
Copy of the additional subscription check box
screenshot of Respondent No. 3.
Copy of Respondent No. 3 & Petitioner email
communication dated between March 11 and
March 30th 2017.
12. ANNEXURE P-6 (Colly)
Copies of Petitioner’s mobile UCC messages
received from Respondent No. 3, 4 and 5.
Filed By:
Advocate in person
Arvind Singh
630, 1st floor, Dr. Mukherjee
Nagar,Delhi 110009
Contact: +91 9205385276 Email id:
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
Bar & Bench (www.barandbench.com)
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
SHORT INDEX
12A. ANNEXURE P-6 (Colly)
Copies of Petitioner’s mobile UCC messages
received from Respondent No. 3, 4 and 5.
13. ANNEXURE P-7 (Colly)
Copies of the Respondent no. 3 and 4 website
terms and conditions clause
14. ANNEXURE P-8 (Colly)
Copies of legal notices along with original
postal receipts issued by Petitioner to
Respondent no. 3, 4 and 5 & their respective
replies.
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15. ANNEXURE P-9
Copies of Respondent No. 3 email subscription
letter
16. ANNEXURE P-10
Copies of screenshot user account next stage
pre auto check method of subscription of
Respondent No. 3 for its users
17. ANNEXURE P-11
Copies of server ownership details of
Respondent No. 3
18. ANNEXURE P-12 (colly)
Copies of live chat transcript between
Respondent no. 4 and the Petitioner
Copies of Petitioner order bill from Respondent
no.4
19. ANNEXURE P-13
Copies of Respondent No. 4 server ownership
details
20. ANNEXURE P-14 (colly)
Copies of relevant judgement from EUCJ,
Japan & Indian judgement.
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21. ANNEXURE P-15
Copies of email communication with
Respondent No. 5 officer Sanjeev Kumar
22. ANNEXURE P-16 (colly)
Copies of email communication between with
Respondent No.5 and Petitioner
Copies of screen shot of complaint resolved
response messages by Respondent no.5 to
petitioner
23. ANNEXURE P-17 (colly)
Copies of screen shot of UCC messages
complaint by Petitioner to Respondent no.5
Copies of email communication from ASCI on
complaint against Respondent No.5
24 Annexure P-18
Copies of print out of complaint
acknowledgement to Respondent No.1 through
central grievances portal against Respondent
No.3, 4 & 5
Copies of print out of complaint response to
petitioner from Respondent No.1 through
central grievances portal
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25 Annexure P-19
Copies of Petitioner’s mobile UCC messages
received from other Companies
26 Annexure P-20
Copies of print out of complaint
acknowledgement to Respondent no.2 central
grievances portal against Respondent No. 3, 4
& 5
Copies of print out of Respondent No.2
response forward to petitioner.
Filed By:
Advocate in person
Arvind Singh
630, 1st floor, Dr. Mukherjee
Nagar,Delhi 110009
Contact: +91 9205385276 Email id:
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
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Bar & Bench (www.barandbench.com)
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
URGENT APPLICATION
To,
Deputy Registrar
Honorable High Court of Delhi
New Delhi
Sir,
1. The accompanying application may be treated as on urgent basis
as per Rule and Orders of the Hon’ble High Court.
2. The grounds of urgency as prayed for in the application.
Filed By:
Advocate in person
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Arvind Singh
630, 1st floor, Dr. Mukherjee Nagar
Delhi 110009
Contact: +91 9205385276
Email id:
arvind.singhdse@gmail.com
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
Bar & Bench (www.barandbench.com)
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
NOTICE OF MOTION
Kindly take note that the accompanying Writ petition is being filed
before the Hon’ble High Court of Delhi at New Delhi and the same
to be listed _/_/__ or thereafter. A copy of the complete Writ
petition is being supplied to you with this letter.
Filed By:
Advocate in person
Arvind Singh
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630, 1st floor, Dr. Mukherjee Nagar
Delhi 110009
Contact: +91 9205385276
Email id:
arvind.singhdse@gmail.com
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
Bar & Bench (www.barandbench.com)
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
MEMO OF PARTIES
Arvind Singh
S/o Shri Surender Singh
630, 1st Floor, Dr. Mukherjee Nagar
Delhi – 110009 …Petitioner
VERSUS
1. Ministry of Electronics & Information Technology
(MIETY), (Government of India),
Through its Secretary,
Electronics Niketan, 6, CGO Complex,
Lodhi Road, New Delhi – 110003, …Respondent No. 1
2. Ministry of Telecommunications
(Government of India),
Through its Secretary,
20, Sanchar Bhawan, Ashoka Road,
New Delhi, Delhi 110001, …Respondent No. 2
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3. Pisces Eservices Pvt. Ltd. (Food Panda)
Through its Director(s)
Mr. Saurabh Kochhar
Plot no. 82A, Sector 18,
Gurgaon, Haryana – 122015 …Respondent No. 3
4. Dunkin Doughnuts India
Jubilants Foodworks India ltd
Through its CEO (s)
Mr. Partik Potia
4th floor, Tower D, Plot No.5
Logix Techno Park, Sector 127
Noida-201304,U.P, India …Respondent No. 4
5. Bharti Airtel Ltd
Through its Directors (s)
Registered Office: Bharti Crescent, 1,
Nelson Mandela Road, Vasant Kunj,
Phase II, New Delhi – 110 070, India …Respondent No. 5
Filed By:
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Advocate in person
Arvind Singh
630, 1st floor, Dr. Mukherjee Nagar
Delhi 110009
Contact: +91 9205385276
Email id:
arvind.singhdse@gmail.com
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
Bar & Bench (www.barandbench.com)
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh, Advocate …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
COURT FEES
Bar & Bench (www.barandbench.com)
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Filed By:
Advocate in person
Arvind Singh
630, 1st floor, Dr. Mukherjee Nagar
Delhi 110009
Contact: +91 9205385276
Email id:
arvind.singhdse@gmail.com
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh, Advocate …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
SYNOPSIS
That the Petitioner is practicing advocate having its office at 630, 1st
Floor, Dr. Mukherjee Nagar, Delhi 110009 and currently residing in
35/35, West Patel Nagar, Delhi 110008. It is stated that the
Petitioner is registered user/customer of Respondent No.3, 4 and 5
and over the course of time and usage of the website and the
application or app “Foodpanda”, “Dunkin Doughnuts” and telecoms
service of “Airtel”, it was discovered that Respondent No. 3 & 4 is
misusing the Petitioner personal information stored with
Respondent No. 3, 4 and 5 for direct marketing purpose i.e.
Unsolicited Commercial Communication (UCC) messages, without
obtaining lawful consent from the Petitioner. The Petitioner himself
used and placed order with Respondent No.3 from time to time and
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& Respondent No.4 for only one time as a guest user and never gave
consent to Respondent No. 3 & 4 for such UCC messages. It is
stated that the Petitioner with Respondent No.4 was not even aware
of storing such data, as Respondent No.4 never give such
notification by any means at the time of placing the first and the last
order as a guest user. It is also stated by the Petitioner that the phone
number of Petitioner receives the UCC messages is also registered
with Do Not Disturb (DND) directory of the access service provided
by Respondent No.5 (Bharti Airtel ltd), to such telemarketer. It is
also submitted that the Petitioner raised objections with Respondent
No. 3 and 4 and sought justification on why the Respondent No. 3
and 4 is continuously sending the Petitioner such UCC messages.
That it is also submitted that on the Petitioner’s complaint the
Respondent No. 3 & 4 through his employee on which respondents
convey its apologies and promised that Petitioner in future will not
receive any such UCC messages from Respondent No. 3 & 4.
However, despite a registered complaint and innumerous requests
through email(s) and oral communication the Petitioner is still
receiving UCC messages from the Respondent No. 3 on regular
interval i.e. 2 to 4 times in a day. That the Respondent No. 3 and 4
ignored the request of the Petitioner to stop sending UCC messages
& continued to send the Petitioner such UCC messages. It is
submitted that the same is in clear violation of Article 21 of the
Constitution of India, breaching Petitioner’s Fundamental Right of
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Privacy engraved therein in Article 21 of the Constitution of India.
It is further germane to mention at this juncture that the Petitioner
also found that the Respondent No. 3 & 4 obtains such consent on
forcible and in absence of free will to withdraw the consent by the
Petitioner and all other users who are users of the services provided
by the Respondent No. 3 & 4, which is essential of Indian contract
act 1872 and misuse the registered user/customer data for UCC
messages without obtaining lawful consideration and the same in
clear violation of section 72 A, & 43A of Information Technology
Amendment act (ITA) 2008. That the Respondent No. 3 & 4 not
only limits its action to misuse of registered user/customer’s
personal information for wrongful financial gain but also
Respondent No. 3 and 4 doesn’t abide by its own clause pertaining
to the privacy policy available in Respondent No. 3 and 4 website
and mobile application “FoodPanda” or “Dunkin Doughnuts”,
which is further in violation of (SDPI) & Intermediary rules 2011
norms establish in Information Technology act 2000. The
Respondent No. 3 & 4 is also indulged in concealing the facts and
through misrepresentation by obtaining registered user/customer’s
consent for direct marketing and raise further question of legal
enforceability on such consent of website policies. The Petitioner is
also making Respondent No. 1, 2 & 5 as party in the instant Writ as
both the parties have failed to discharge its statutory duty
responsibility towards data protection and privacy of the Petitioner
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and other registered users / customers under Information technology
act 2000 & The Telecom Commercial Communications Customer
Preference Regulations, 2010. Accordingly, the Petitioner is moving
this instant Writ before this Hon’ble Court seeking a writ of
Mandamus or such other Writ or an appropriate Writ or order or
direction against the Respondents no. 1 & 2.
LIST OF DATES
27.10.2016 Petitioner registered its user account with
Respondent No. 3 online portal
www.foodpanda.in and places its first online
food order from Respondent online portal
“Foodpanda” for Rs.147 INR
17.10.2016 Petitioner registered its mobile number with
DND registry with vide registration no.
S1691007130.
18.12.2016 Petitioner deleted “Foodpanda” application & an
auto correspondence through its registered Gmail
to unsubscribe from “Foodpanda” news &
promotions.
19.12.2016 Petitioner mobile activated under DND registry
at 15:32 hrs for No call & SMS (full block
category)
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20.02.2017 Petitioner placed its order no #125 & checkout
with Respondent No.4 online portal
www.dunkininindia.com as guest user without
registering any user account.
11.03.2017 Petitioner raised complaint with Respondent No.
3 on UCC messages with request number is #
16352354. The Respondent No. 3 customer care
department called the Petitioner on same day and
assured that he will not receive any UCC
messages in near future. Petitioner accepted
apologies but insist to provide clarification on
how & when his consent was obtained.
15.03.2017 Petitioner received email from Respondent No. 3
senior staff explained and informed Petitioner
that on 1st Nov 2016 Petitioner’s second online
food order consent was obtained to send UCC
messages. Respondent No. 3 again on email
promised that Petitioner in future not received
these UCC messages. The Petitioner did not see
any improvement and continuously received
messages for rest of duration.
01.04.2017 Petitioner received UCC messages from
Respondent No.5 this time.
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02.04.2017 Petitioner received UCC messages from
Respondent
No.5 this time.
02.04.2017 Petitioner issues and serves legal notice to
Respondent No. 3. By speed post no.
ED157163689IN
19.04.2017 Petitioner received Respondent No. 3 reply to
Petitioner’s legal notice.
06.05.2017 Petitioner received UCC messages from
Respondent
No.4
06.05.2017 Petitioner raised a complaint with Respondent
No. 4 on UCC messages through live chat.
Respondent no.4 employee’s apologies and
inform Petitioner they are deleting the
Petitioner’s data right away and Petitioner will
not receive any further UCC messages. But the
Respondent no. 4 ignored the Petitioner’s
clarification on how they obtain the consent and
why they are storing data when Petitioner did not
maintain user account with Respondent No.4.
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07.05.2017 Petitioner received UCC messages from
Respondent No.4 again but no clarification on its
request till yet.
07.05.2017 Petitioner registered complaint with Respondent
No.5 DND complaint No.1909 against
Respondent No 4 and other Telemarketing
companies.
09.05.2017 Petitioner complaint to Respondent No.1
Ministry of Electronics & Information
Technology Dr N. Saravana Kumar I.A.S.,
Delhi, on email mljoffice@gov.in Delhi and by
Speed Post No. ED321485210IN
10.05.2017 Petitioner registered its complaint to Respondent
no.1 against 3, 4 & 5 with Centralized Public
Grievance Redress and Monitoring System
(CPGRAMS) online portal with registration No.
MINIT/E/2017/01586.
11.05.2017 Respondent No.1 closed CPGRAMS complaint
No. MINIT/E/2017/01586 with remarks Subject
matter not relates to this Ministry.
11.05.2017 Petitioner dispatched the demand notice to
Respondent No.4 by speed post No.
ED2612376691N.
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17.05.2017 Petitioner dispatched the Demand Notice to
Respondent No. 5 by speed post No.
ED321386883IN and by email to Sanjeev Kumar
on 1909@airtel.com.
25.05.2017 Petitioner received reply from Respondent no. 4
on the Demand Notice issued by the Petitioner.
07.08.2017 Petitioner received UCC messages from
Respondent No.4 again even when Respondent
earlier promise and mention in legal notice reply
that petitioner data has been deleted and he will
not receive any UCC messages in future.
09.08. 2017 Petitioner registered its complaint to Respondent
no. 2 against 3, 4 & 5 with Centralized Public
Grievance Redress and Monitoring System
(CPGRAMS) online portal with registration No.
DOTEL/E/2017/26954.
09.08.2017 Petitioner received UCC messages from
Respondent No.5 again and other UCC
messages.
HENCE, THIS PRESENT PETITION
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IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELHI
WRIT PETITION (CIVIL) No. ________ of 2017
IN THE MATTER OF:
Arvind Singh, Advocate …Petitioner
VERSUS
Ministry of Electronics & Information
Technology & Others …Respondents
CIVIL WRIT PETITION UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OF
MANDAMUS PETITION OR SUCH OTHER WRIT OR AN
APPROPRIATE WRIT OR ORDER OR DIRECTION TO
THE RESPONDENTS
MOST RESPECTFULLY SHOWETH:
1. That the Petitioner is a law-abiding citizen of India and is a
practicing advocate and presently carrying out its profession at
the above-mentioned address and currently residing at West
Patel Nagar, New Delhi.
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2. That the Respondent No.1 is the Ministry of Electronics &
Information Technology (MIETY) which is casted with the
responsibility to regulate the operations of business done by
using the online platform of website and mobile application just
like Respondent No. 3 & 4. That the Respondent No.1 is also
responsible for monitoring and ensuring cyber due diligence,
cybercrime and issue notification or implement such related
policies to safeguard the privacy rights of every citizen in IT
related business through statute/or and law from time to time.
3. That That the Respondent No.2 is the Ministry of
telecommunications which is casted with the responsibility to
regulate and monitor the telecom service provider company such
as Respondent No.5 through it’s establish Authority i.e. Telecom
Regulatory Authority of India (TRAI) act for consumer matters.
That the Respondent No.2 is also responsible to issue directions
to such authority for Policy, Licensing and Coordination matters
relating to telephones, data, and other like forms of
communications monitoring. That the Respondent No.2 also
issue notification or implement UCC messages related policies
through TRAI to safeguard the consumer rights, privacy rights
and related of every citizen in related business through statute/or
and law from time to time.
4. The Respondent No. 3 is a global mobile food
delivery marketplace headquartered in Berlin, Germany,
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operating in 43 countries and territories. That the Respondent
No. 3 is a private limited company, incorporated and constituted
under Companies act, 2013, having CIN No.:
U72900HR2012PTC045028 and registered office at Industrial
Plot No. 82-A, Sector-18 Gurgaon, Haryana – 122 015. The
Respondent No. 3 operates via online medium as an aggregator
of restaurants for the purpose of carrying out online food
delivery services, allows users / consumers / customers to order
food and beverages from thousands of restaurants in over 100
cities through its website www.foodpanda.in or its mobile
application or app “Foodpanda”. The Respondent No. 3 operates
online platform by the name of “Foodpanda India”, helping its
registered user/customer(s) to place food order online from the
restaurant(s) of his choice within its vicinity through the website
or mobile application of “Foodpanda” in India and the customers
avail the services of Foodpanda in order to enjoy the ease and
comfort of ordering food online by exploring a wide variety of
eateries as per the taste and wish of the user/customer(s).
5. The Respondent No. 4 is subsidiary company of ‘Dunkin'
which is an American global donut company and coffee
house based in Canton, Massachusetts, in Greater Boston. That
the Respondent No. 4, one of the largest coffee and baked goods
chains in the world, with more than 12,000 restaurants in 36
countries. That the Respondent No. 4 is private limited company,
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incorporated and constituted under Companies act, 2013, having
CIN No:L74899UP1995PLC043677 and registered office at
Industrial Plot No. 1A, Sector -16A, Noida – 201301, U.P. That
the Respondent No. 4 operates via online medium as an
aggregator of restaurants for the purpose of carrying out online
food delivery services, allows users / consumers / customers to
order food and beverages through its website
www.online.dunkinindia.com or its mobile application or app
“Dunkin Coffee”. The Respondent No. 4 operates online
platform by the name of “www.dunkinindia.com”, helping its
guest user or/and registered user/customer(s) to place food order
online from its own listed café product(s) of his choice within its
vicinity through the website or mobile app of Dunkin India and
the customers avail the services of Dunkin Donuts in order to
enjoy the ease and comfort of ordering food online by exploring
a wide variety of its listed eateries as per the taste and wish of
the user/customer(s).
6. Further, the Respondent No. 5 is Bharti Airtel Limited that is the
Telecom Company/GSM service provider to the Petitioner, who
uses the phone number for placing orders online and through
mobile application. That the Respondent No. 5 is also access
provider to companies like Respondent No. 3 & 4 for such UCC
messages for telemarketing purpose. That both the Respondent
No. 5 & Respondent no.3, 4 is also casted to carry out Due
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diligence in ensuring DND registered number should be filtered
before carrying out such promotional SMS and in case of
complaint take necessary action against such telemarketer from
time to time as directed by THE TELECOM COMMERCIAL
COMMUNICATIONS CUSTOMER PREFERENCE
REGULATIONS, 2010.
7. That the Petitioner is a bonafide registered user/customer with
Respondent No. 3 with registered mobile number +91-
9205385276 and email id arvindsinghdse@gmail.com from the
month of October 2016. That the Petitioner has used Respondent
No.3 services from time to time whenever Petitioner required
and in need of its service(s) for ordering food online. Like many
registered user/customers, the Petitioner had enjoyed the services
of food panda along with offers & discounts, time convenience
and value for money in past.
8. That the Respondent No. 3 provides services for ordering food
online on its portal to registered user/customers only, to become
a registered user/customer of Respondent No. 3 one has to
registered itself by signing up to its website or mobile
application “Foodpanda”. That the Respondent No.3 during the
process of registration obtain consent from its registered
user/customers that s/he agreed to the “Terms & conditions” &
“Privacy policy” of Foodpanda. That if the registered
user/customer didn’t subscribe and tick the box of Terms &
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conditions & privacy policy s/he cannot register its account as
registered user/customers with “Foodpanda” and cannot avail
online delivery services from “Foodpanda”. That Respondent
No. 3 through this way left no choice with its registered
user/customers and obtains consent from its registered
user/customers since beginning of signup registration. That the
Respondent No. 3 obtain the following information at the time of
signup registration and post:
I. Name of registered user/customer.
II. Mobile number of registered user/customer.
III. Email address of registered user/customer.
IV. Financial details like Debit Card & credit card information
of registered user/customer during checkout/placing order.
The screen short of the Respondent No.3 online portal
registration signup page home screen is here enclosed and
annexed as Annexure P-1.
9. That the Petitioner to avail the Respondent No. 3 services for
ordering food online gave Respondent No. 3 compulsory &
forcible authorisation to access its personal data. That it is to be
stated from beginning of registration of user account with
Respondent No. 3 online portal Petitioner start receiving
promotional SMS on it’s registered mobile number. That it is
pertinent to mention that first few months due to low frequency
the Petitioner ignored the promotional SMS and mark the
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Respondent No.3 UCC SMS alpha ID in DND mode of
Petitioner’s iPhone and later registered its mobile number with
DND registry on 17th Dec 2016. That it is also submitted that the
DND full block services was activated on 19th Dec 2016, 15:32
hrs on Petitioner’s registered mobile no. 9205385276 by
Respondent no. 5. It is pertinent to mention that on 18th Dec
2016 the Petitioner deleted the “Foodpanda” mobile application
and unsubscribed from the promotional list of Respondent No. 3
and accordingly an auto generated email was sent to the
Petitioner with subject line of “unsubscribe”. That the Petitioner
registered Gmail id didn’t reported any technical error or failure
delivery on the same and same email was resend on 12th May
2017. That the Petitioner on sending such email believe that the
Respondent No. 3 would comply with the law and regulations of
this country & the Petitioner will not receive any further
promotional newsletter or/and UCC messages, as defined in
Section 2 (i) of The Telecom Commercial Communications
Customer Preference Regulations, 2010:
“Commercial Communication” means any message, voice or
SMS, made through telecommunications service, which is
transmitted for the purpose of informing about, or soliciting
or promoting any commercial transaction in relation to
goods, investment or services”.
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and also, TCCPR 2010 regulation 20 (2) defined that such UCC
messages services should not send to DND registered number
either registered in full block category, the same also define on
official website of http://www.nccptrai.gov.in/nccpregistry/. The
printout of email sent for Un-subscription by petitioner to
Respondent No.3 & Petitioner DND registry record is also
enclosed herein as Annexure P-2 & the printout of TRAI
website on procedure of complaint for UCC messages herein
annexed as Annexure P-3.
10. That it is pertinent to mention here that the Petitioner adopted all
necessary steps to avoid Respondent No.3 UCC messages but
unfortunately all his efforts went in vain. That the Respondent
No. 3 over the time continuously increased the UCC messages
frequency and it grew it day by day and especially in the month
of February & March 2017, it was beyond control as the
Petitioner started receiving 3 to 4 messages on a daily basis. That
the Petitioner before taking any action wanted to be sure that if
the Petitioner anyhow has given consent to Respondent No. 3 to
send Petitioner for such UCC messages on his iPhone. That the
Petitioner accessed his registered user/customer account on
Respondent No. 3 online portal “Foodpanda” to check the same
and also by mistake if so, wanted to opt out/unsubscribe for such
UCC messages from Respondent No. 3 online portal. It is to
pertinent to mention that the Petitioner in utter shock found that
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the Petitioner’s registered user/customer account features has no
option to opt-in or opt out /subscribe or unsubscribe for
promotional messages services. The Petitioner found out that the
registered user/customer account of the Petitioner only have a
newsletter subscription as an option to receive updates and
promotional offers or discounts through email or in form of letter
that the Petitioner never received in his email inbox over last 6
months or till date. That thereafter the Petitioner immediately
subscribes & unsubscribe promotion newsletter checkbox at
same time so that he can save the update for it’s registered
“Foodpanda” account. The Petitioner assumed that because
updates finally taken place in its account now therefore by all
means Petitioner should not receive any further UCC messages
in future. But to the Petitioner dismay, the Petitioner is in
continuous manner receiving UCC messages every day from the
Respondent No. 3 and such UCC messages doesn’t include any
options or procedure to unsubscribe, as claimed by the
Respondent No. 3 in clause 5 of its privacy policy and admit
again through it’s counsel in legal notice reply to Petitioner. It is
germane to mention at this juncture that the UCC messages
include a Respondent No.3 mobile application “FoodPanda” link
on Google or IOS/Android store for placing order from
application. That it is pertinent to mention here that the Petitioner
also did not found the Respondent No. 3 name in the List of
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Registered licensed Telemarketers with Telecom Regulatory
Authority of India (TRAI)-website:
http://www.nccptrai.gov.in/nccpregistry/listoftmstateanddistrict.
misc?method=loadStates for Delhi or Gurugram or Bangalore
region that permits the Respondent No.3 to send the Petitioner or
any other user/customer such UCC messages as per TELECOM
COMMERCIAL COMMUNICATIONS CUSTOMER
PREFERENCE REGULATIONS, 2010 that telemarketer after
registration with the Authority under regulation 14, can apply for
telecom resources from one or more Access Providers. That the
Petitioner also requested the same information from Respondent
No. 5 on email dated May 6th, 2017 for Respondent No. 3 & 4,
which till date denied and not provided. That the Petitioner
received UCC messages through alpha Id AD-FPANDA/AM-
FPANDA &DZ-PANDA. The Printout of Respondent No. 3
email subscription letter shout-out email, Respondent No 3-
privacy policy clause 5 and screen short of Petitioner account
with unsubscribe option here enclosed herein as Annexure P-4.
11. That it is to be stated that the Petitioner after considering all the
measures left with no choice contacted the Respondent No. 3 on
email through raising complaint ticket no. # 16352354, on dated
March 11, 2017. That the Petitioner raised concern with the
Respondent No. 3 customer care team that why the Petitioner is
receiving such UCC messages. The Petitioner also at the same
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time sought clarification on when & how his consent for such
UCC messages was obtained by Respondent No. 3. In response,
the Petitioner received a call from the customer care of
Respondent No. 3 executive “Mr Navjeet Singh” who failed to
answer the Petitioner’s query on when and how the Petitioner
gave his consent to the Respondent No. 3 for sending UCC
messages to his mobile number. That Mr. Navjeet Singh
informed Petitioner on telephonic discussion that the Respondent
No. 3 employee would call back to the Petitioner with valid
explanation and information on UCC messages after consulting
it’s senior officer and requested the Petitioner to provide him 48
hours to come up with satisfactory answer to the Petitioner’s
query.
12. That it is stated that even after agreed time there is no valid
justification provided to the Petitioner but instead, the
Respondent No. 3 senior customer care officer suggested the
Petitioner on email & later on phone that when Petitioner place
its’ second online food order for Rs. 210/- on 1st November
2016, the Petitioner subscribed additional checkbox at
checkout/order conrfimation stage and on that day the Petitioner
gave consent to Respondent No. 3 authorisation to use
Petitioner’s personal information for direct sales promotion. That
the Petitioner doesn’t recall such authorisation and for record
requested the Respondent No. 3 to provide any evidence(s) in
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terms of email or any notification sent to the Respondent No. 3
with respect to the same. That the Respondent No. 3 officer
conveyed its apologies to the Petitioner for its inability of
providing any such evidence in support of the Respondent No. 3
claim for subscription for direct message petitioner opted on 1st
November 2016 as there are no evidence or support email stored
with Respondent No. 3, just log in entry. However, the
Respondent No. 3 through its officer informed the Petitioner that
the summary of calls and email considered as complaint and
taken as customer feedback and necessary changes will be done
to improve the Respondent No. 3 services and the Petitioner
should not receive any such SMS in future. The printout of
Respondent No. 3 and the Petitioner email communication trail
& Respondent No. 3 additional box screen shot print here
enclosed herein as Annexure P-5.
13. That it is pertinent to mention that the Respondent No. 3 made
promise to the Petitioner on email that the Petitioner would not
receive any further bulk and promotional SMS. But to surprise,
the Petitioner continuously received UCC SMS till 27thMarch
2017 that is 16th day after the Petitioner notified the Respondent
No. 3 to un-subscribe on 11th March 2017 and again on 22nd
March 2017. That it is pertinent to mention that Petitioner deny
giving any such access to Respondent no.3 and also as per
industry general practice, Respondent no.3 did not send any
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notification on email or by SMS that Petitioner have now
authorised Respondent no.3 and agreed to received promotional
messages, as its claim under clause 5 of privacy policy and as
standard laid down in Information technology rules 5 (3) under
section 43A, SDPI (Reasonable Security Practices and
Procedures and Sensitive Personal Data or Information) Rules
("Rules") which took effect in 2011). That it is pertinent to
mention that Petitioner on 18th December 2016, have notified
Respondent no.3 for unsubscribe/opt-out for all communication
through auto generated email from his Gmail as disclosed above
and then second time on March 11th, 2017 & third time on March
22nd, 2017. The Printout of Petitioner mobile UCC messages
received from Respondent No.3 screen short here enclosed
herein as Annexure P-6.
14. That as per Respondent No. 3 online portal “Terms &
conditions” section 7.2 states that “FoodPanda” registered
user/customer by signup authorize Respondent No. 3 to use its
personal information in order to provide the Food Delivery,
Goods or Services to Petitioner and for marketing and credit
control purposes (the "Purpose"). That the purpose defines as
disclosing registered user/customer personal information to
selected third party from time to time for marketing purpose,
which Respondent No. 3 believe the registered user/customer
may be interested in or /and for food delivery to consumer
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registered address/location i.e. phone number shared with vendor
for finding location of address or in case of unavailability of
ordered food, delay in delivery beyond estimated time or any
other circumstances where Respondent No.3 listed restaurant
unable to serve order delivery etc. That it is pertinent to mention
such consent obtain from registered user/customer in forcible &
compulsion in nature and raise legal enforceability of such
consent under Indian contract act 1872, if registered
user/customer doesn’t accept such terms and conditions at the
time of signing up of account on Respondent No.3 online portal
“Foodpanda” or mobile app “Foodpanda” the Respondent No.3
service cannot be availed and no user account with Respondent
No.3 online portal can be registered, such consent and
authorization is arbitrary and left registered user/customer no
other choice but to registered and approve authorization at very
first step with in favor of Respondent. The print out of
Respondent No.3 terms and conditions clause here enclosed
herein as Annexure P-7.
15. That it is pertinent to mention that Respondent No.3 in it’s
earlier communication with The Petitioner, through it’s customer
care officer suggest that Petitioner gave consent on 1st Nov 2016
at the time of online food order and later in legal notice reply
Respondent No.3 through its counsel highlighting the fact that
consent obtain very first time from Petitioner at the time of
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registration of account on Respondent No. 3 online portal. That it
is pertinent to mention that as per Information Technology
Reasonable security practices and procedures and sensitive
personal data or information (SDPI) Rules, 2011, Rule 5 (3)
under section 43A & overall Industry practice worldwide, the
Respondent No.3 did not send any notifications on email or any
means that petitioner has given authorisation to Respondent no.3
for sending him such UCC/promotional messages. That the rules
states that Respondent No.3 should ensure that the provider of
the information is aware that the information is being collected,
the purpose of use of the information, on other hand the
Respondent No. 3 took advantage of compulsory authorisation
by directly sending UCC messages to Petitioner iPhone.
16. That it is also pertinent to mention that even Petitioner at once
admit that he authorised access to Respondent No.3 on 1st
November 2016 while ordering food. That the Respondent no.3
admit through its officer and legal notice reply that such UCC
messages consent was obtained later on checkout stage/pacing
order, whereas per rules at this stage respondent No.3 should
send notification to its petitioner, but Respondent on the other
hand remain silent and did not fulfil its obligations with intention
to use petitioner number for UCC messages and by means of
direct marketing and creating monopoly, advantage over its
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competitor with aim to achieve wrongful financial gain & brand
recognition.
17. That its pertinent to mention that Petitioner registered his number
with DND registry on 17th Dec 2016 and also Petitioner
requested Respondent No. 3 on 18th Dec 2016 for unsubscribe
which was totally ignore by Respondent No.3 and mentally
harassed the Petitioner continuously by sending UCC messages
till the date Petitioner took hard step of sending Respondent No.
3 a legal notice. That the Respondent No. 3 fail to fulfil his
obligation to carry out compliance as per DND registry
suggested by TELECOM COMMERCIAL
COMMUNICATIONS CUSTOMER PREFERENCE
REGULATIONS, 2010 (TCCCPR) and did not acknowledge
that Petitioner number listed is DND registry, full block category
and even petitioner send Respondent no.4 un-subscription email ,
the Petitioner should not have further received any
communication on its iPhone from Respondent No. 3 side. The
printout of legal notice to Respondent No. 3 & its reply from
Respondent No.3 here enclosed herein as Annexure P-8.
18. That it is pertinent to mention that Respondent No. 3 claim that
Petitioner by signing up account with Respondent No. 3 online
portal, along with signing “Terms & conditions” also by default
have signed & agreed with Respondent No.3 “privacy policy”
and as per clause 5 of “privacy policy” Respondent No.3 claim
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that the Petitioner has authorised & consented to Respondent
No.3 to use Petitioner personal information which includes email
& SMS for advertisement & direct marketing purposes. That it is
pertinent to mention that Respondent No.3 also claim in clause 5
read as “if Petitioner or any registered user/customer like to
unsubscribe from Respondent No.3 direct marketing or stop
Respondent No.3 from sharing registered user/customer
personal information need to write email to Respondent’s No.3
email address customercare@foodpanda.in & inform the same or
follow the steps to unsubscribe which are presented in every
communication Petitioner received from Respondent No. 3 in
past but the Respondent No.3 also mention that post such steps
Respondent No.3 will may not be in position to serve any
registered user/customer in future. That it is pertinent to mention
that such UCC messages doesn’t contain or provide Petitioner
any link or procedure to unsubscribe from promotional list as
claim by Respondent No.3 in it’s privacy policy clause 5, in fact
links provided leads to Respondent No.3 mobile app available on
google play store or/and Apple store, and that here prove to be
while lie and against Respondent No.3. That the Respondent
No.3 have adopted UCC messages as and only way of
commercial communication to promote its services for wrongful
person financial gain, as defined under section 72A & 43A of
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Information technology Amendment act 2008, against its
competitor and creating brand monopoly in market.
19. That it is pertinent to mention that before writing to Respondent
No.3 and sending demand notice, Petitioner ensure and double-
check the Respondent No.3 registered user/customer account
system on grounds of transparency and user friendly. That
Petitioner in welfare of all user community also wanted to verify
Respondent’s No.3 claim on its clause 5 of Privacy policy. That
it is pertinent to mention to that the Petitioner on 16th March
2017 subscribe the newsletter box, as the only way suggested by
Respondent No.3 to receive offer and the Petitioner after
subscribing newsletter checkbox. That the Petitioner first time
ever received email from Respondent No. 3 on alert as Petitioner
authorised for Respondent No. 3 offer & promotion subscription
through email. That the Petitioner waited for one week to see any
newsletter communication arrived from Respondent No. 3 side
but the Petitioner did not receive any newsletter but in fact
received promotional SMS on other hand as like before. That it
is germane to mention Respondent No. 3 never send such
subscription email/notification.
20. That it is germane to mention Respondent No.3 as informed
earlier about additional subscription order checkout stage on its
website in reality, automatically pre-check subscription box to
keep registered user/customer in dark where Respondent No. 3
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claim that he obtains lawful consent for UCC messages through
its customer. That it is germane to mention that the Respondent
No. 3 claims on clause 5 prove to be lie in this case because
newsletter subscription notification email received by petitioner
doesn’t include any distinctive procedure or any step/option of
unsubscribe from such offer & promotions as claimed in clause 5
and also same admit by Respondent No.3 through its counsel to
legal notice reply. The printout of Respondent No. 3 email
subscription letter shot-out email herein enclosed as Annexure
P-9.
21. That it is germane to mention that the Respondent No.3 never
send any promotional newsletter/Any Notification on obtaining
such authorisation for commercial communications but on the
other hand the Respondent No.3 wrongful motives can be clearly
seen from the following facts:
I. That RespondentNo.3 provides its registered user/customer
with one & only option of newsletter subscriptions to
subscribe or unsubscribe for any promotional communication
in registered/customer user account.
II. That Respondent No.3 doesn’t give any other option to its
registered user/customer specifically to withdraw its consent
for direct marketing and even if registered user/customer
unsubscribe promotional letter, as only option given forefront
and save updates still continue to receive UCC messages.
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III. That the Respondent No.3 claim in his privacy policy clause 5
that registered user/customer can request & withdraw from
receiving UCC messages & promotional letter by writing to
Respondent No.3 on customercare@foodpanda.in
“That is pertinent to mention sub regulation 9 of Regulations
5 of SPDI rules 2011, Respondent no. 3 must designate a
Grievance Officer and publish his name and contact details on
its website, which respondent no.3 is in violations off “
or follow procedure or step provide in every communication
he sends to registered user/customer in the UCC message and
other means of promotion i.e. promotional letter. That but in
reality, Respondent No.3 doesn’t send any procedure /link or
step to unsubscribe in none of its communication, also in
Petitioner case this proves to be lie as Petitioner continuously
received UCC messages even after writing email on three
different occasions. That it is because Respondent No. 3 has
adopted only way of promoting its services through UCC
messages to registered user/customer without considering the
fact if registered user/customer number is in DND listed no or
not, or if registered user/customer has unsubscribed the
promotion letter in its account or drop him in line.
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Respondent No.3 only concern with its profits not with
Individual privacy, act or statue of this country.
IV. The Respondent No.3 also obtain forcible consent from
registered user/customer at very beginning of signup, which is
not in free will of user and left no choice because the
Respondent No.3 deny its service by not letting user
registered maintain account on online portal “FoodPanda” or
mobile app “FoodPanda”.
V. That the RespondentNo.3 in next step of placing order
through his Machine learning/AI automation
checksubscribebox itself in advance on the behalf of
registered user/customer and also doesn’t not disclosing
complete facts during online order through this
RespondentNo.3 in deceptive nature misrepresent to it’s
registered user/customer as this subscription also related to
newsletter promotion for receiving news and offers on
Respondent No.3 service.
VI. That the Petitioner Highlighted the International Practice and
user rights Rights in relation to automated decision-taking.
That Data Protection Act 1998 of United Kingdom Section 12
required Data controller to validate such automation, Data
controller must as soon as reasonably practicable notify the
individual that the decision was taken on that basis, and the
individual is entitled, within twenty-one days of receiving that
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notification from the data controller, by notice in writing to
require the data controller to reconsider the decision or to take
a new decision otherwise than on that basis. That the
Respondent No.3 and also Respondent No.3 fail to follow
procedure requirement in SDPI Rules, 11th April 2011
notification, that can be seen in sub rule (3) of regulations 5.
The copies of screenshot user account next stage pre-auto
check method of subscribehere enclosed herein as Annexure
P-10.
VII. That it is pertain to mention that even after Petitioner on 18th
Dec 2016 unsubscribe from promotional list & in another two
occasion wrote Respondent No.3 to stop these message on
dated 18th Nov 2016 &11th March 2017, continuously
received UCC messages from Respondent No.3. That on
22nd March 2017 Petitioner raised another complaint ticket
no. 16567704, and Petitioner wrote a separate email
requesting third time Respondent No.3 customer care email id
to stop sending promotional messages, on which
RespondentNo.3 employee Rohit Ganjo on 22nd March 2017,
assured Petitioner that within next 24 to 48 hours the
Petitioner will stop receiving such messages. That to utter
shock to Petitioner even after writing so many email and
escalated the matter with legal notice Petitioner received
UCC message from different alpha ID number still 27th of
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March 2017 which was supposed to be stopped as per
RespondentNo.3 with in 48 hours of writing on
customercare@foodpanda.in i.e. 24th March 2017 and as per
regulation it should stop within 36 hours of notification from
aggrieved party under sub rule (4) of rule 3 of Information
Technology (Intermediaries Guidelines) Rules, 2011, under
section 79, Information Technology (Intermediaries
Guidelines) Rules, 2011.
VIII. The Respondent No.3 claim on clause 5 proves here as white
lie and also the even in case of withdraw from subscription
(which obtained on forcible and deceptive means) is also
arbitrary and favouring only RespondentNo.3 by all means
and RespondentNo.3 without any fear of law Respondent No.
3 take unlawful advantage of not remaining hours but days as
time line to promote its services to the victim. That it is
pertinent to mention that Information Technology
(Intermediaries Guidelines) Rules, 2011 diligence framework
to be observed by intermediary while discharging his duties.
“Sub-rule (4) of Rule 3 provides that the intermediary upon
obtaining knowledge by itself or been brought to actual
knowledge by an affected person in writing or through email
signed with electronic signature about any such information
as mentioned in sub-rule (2), shall act within thirty six hours
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and where applicable, work with user or owner of such
information to disable such information that is in
contravention of sub-rule (2)”
Here intermediary as a corporate who hold aggrieved person
personal information, also Respondent No.3 server (based in USA,
California) owned and managed by Foodpanda GmbH which is
based in Berlin, Germany and Respondent No.3 is subsidiary of
Foodpanda GmbH. Printout copies of Server ownership details here
enclosed herein as Annexure P-11.
22. That the Respondent No. 3 intentionally through all above means
trying to achieve wrongful financial gain & monopoly against its
competitor through direct marketing promotion. That the
Respondent No.3 without fear of law or pleased to this country law
indulge in unfair trade practices and anti-competition policies by
virtue of it’s operation of reaching it’s customers neglecting the
fundamental rights of user that guaranteed under Article 21 of the
Constitution of India, 1950.
23. That In the light of the above stated facts and circumstances, is,
therefore, Respondent No.3 is in violation of:
a) Sub rule (3) of Rule 5, Information Technology, SDPI
rules 2011, under section 43A diligence framework in
absence of notification to Petitioner on data or information
authorisation changes.
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b) Sub rule (9) of Rule 5, Information Technology, SDPI
rules 2011, under section 43A, in violation by not
designate a Grievance Officer and publish his name and
contact details on its website.
c) Indian contract Act 1872 on gaining consent without free
will and by auto check by its automation/API IT tools.
That as per 10A of ITA act 2008 such contract shall not be
deemed to be unenforceable solely on the ground that such
electronic form or means was used for that purpose.
d) Breach of privacy rights under article 21 of Constitution of
India law 1950.
e) Failure to comply due diligence on discharging its duty
under sub rule (2), of rule 3 on due diligence of
Information Technology (Intermediaries Guidelines)
Rules, 2011, under section 79 on unlawful storage of
information and transmission to another computer located
outside Indian territory.
f) Sub rule (4), of Rule 3 of Information Technology
(Intermediaries Guidelines) Rules, 2011, under section 79
on failure to disable petitioner data within 36 hours post
written confirmation.
g) Rule 7 of Information Technology (SDPI) Rules, 2011,
under section 43A for violation of transfer of information
under SDPI rules 2011 for transmitting petitioner data
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outside India territory (USA) without lawful contract and
bonafide consent.
h) Regulations 7 of Information Technology (SDPI) Rules,
2011, under section 43A by storing data outside territorial
jurisdiction of India where petitioner or other citizen user
data is not protected by any law. The Privacy Act of
1974, title 5 U.S.C. 552a, Section 3 (a) define
“Individual” means a citizen of the United states or an
alien lawfully admitted for permanent residents.
i) Under Section 72A & 43A of Information Technology
Amendment act 2008 for unlawfully access and misusing
Petitioner personal information or data for wrongful gain
in Respondent No.3 business promotion to achieve
financial gain and unfair trade practice.
24. That the Respondent No.4 “Dunkin donuts” is also in direct breach
of Petitioner privacy rights and in violation of storing & having
unlawful access to Petitioner personal data. That the Petitioner
placed order with Respondent No.4 website portal on guest mode
and Respondent No.4 unlawfully access, store & misuse its personal
data for UCC messages on 06/07/2017 from Alpha ID AM-
DUNKND & again on 07/07/2017 and latest on 06/08/2017. That
on Feb 20th, 2017, Petitioner order online food from Respondent
No.4, order no#125 for amounting Rs.260. That the Petitioner with
Respondent No.4 place the order online & paid its bill i.e. checkout
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on guest mode and provide it’s phone number/address/debit card
details and email id. That the Petitioner as guest mode here did not
sign up with Respondent No.4 online portal and didn’t maintain any
user account to give access to Respondent No.4 to use it’s data or
store any of it’s data to Respondent No.4 server. That the Petitioner
still shock and surprised to receive UCC messages from Respondent
No.4 even after the Petitioner at the time of placing order as matter
of fact it’s mobile no. was listed with DND registry as full block
category. That the Petitioner even after writing and raising
complaint to Respondent No.4 through live chat with it’s the
customer care very same day conveyed that Petitioner on live chat
and also later through from phone call 011-41845610 confirm
Petitioner that they are deleting Petitioner data right away and the
promise Petitioner will not receive any UCC messages again, but
Respondent No.4 repeated their act on 7th May 2017 by sending
UCC messages to Petitioner DND number again and latest in 6th
August 2017. The Printout of Petitioner order bill copy from
Respondent No.4 here enclosed herein as Annexure P-12.
25. That it is germane to mention that’s Respondent No.4 promise to
delete Petitioners data on different occasion is white lie as the
Respondent No.4 never deleted Petitioner data and on another hand,
restore it permanent basis on server based outside territorial
jurisdiction of India, the fact proves such statement when
Respondent No. 4 very recently send Petitioner UCC messages date
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6th August 2017. Printout copies of live chat transcript hereby
enclosed as Annexure P-12 and Copies of UCC messages enclosed
as Annexure P-6.
26. That the Respondent No.4 telemarketing registration details were
also not found with TRAI National Database of Telemarketer
Registry. That the Respondent No. 4 without such registration with
authority cannot send the Petitioner or any other user/customer such
UCC messages as per regulation 14 of telecom commercial
communications customer preference regulations, 2010.
27. That the Respondent No. 4 is in violation of Information
Technology (Intermediaries Guidelines) Rules, 2011 where Rule 3
intermediaries discharge from his due diligence duties & provides
immunity to intermediaries only when as per Rule 3 sub-rule 2
applicable, but if intermediaries:
“The intermediary shall knowingly host or publish any information
or shall initiate the transmission, select the receiver of transmission,
and select or modify the information contained in the transmission
as specified in sub-rule (2) for onward transmission or
communication to another computer resource” will be not
considered from immunity. That the Respondent No.4 with purpose
and full knowledge store and further transmission the Petitioner
Data for wrongful gain.
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28. That as per Information technology act 2000, Information
Technology (Intermediaries Guidelines) Rules, 2011, under section
79, notification, dated 11th April, 2011, New Delhi, Exemption
from liability of intermediary applicable in certain cases
(1) Notwithstanding anything contained in any law for the time
being in force but subject to the provisions of sub-sections (2)
and (3), an intermediary shall not be liable for any third-party
information, data, or communication link made available or
hosted by him. (2) The provisions of sub-section (1) shall apply
if-
(a) the function of the intermediary is limited to providing access
to a communication system over which information made
available by third parties is transmitted or temporarily stored or
hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the
transmission;
(c) the intermediary observes due diligence while discharging his
duties under this Act and also observes such other guidelines as
the Central Government may prescribe in this behalf.
29. That the Respondent No.4 store the data of Petitioner in non-
temporary basis and further communicate to its server which is
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based outside India i.e. USA and stored Petitioner data outside
territorial jurisdiction of India in one of its server as on permanent
basis and further used it later for Alpha ID UCC messages. That the
Respondent No. 4 as per Rule 7 of Information Technology
(Reasonable security practices and procedures and sensitive
personal data or information) Rules, 2011 for Sec 43A doesn’t have
permission to transfer data outside India and it only may be
permissible or allowed only if it is necessary for the performance of
the lawful contract between the body corporate or any person on its
behalf and provider of information or where such person has
consented to data transfer. That it is pertinent to mention such
consent if so obtain in petitioner case is entirely deceptive and
forceful in nature.
30. That Respondent No.4 acting as subsidiary of Global Dunking
Donuts business and that can be seen from RespondentNo.4 server
/website owned by DD IP Holder LLC based in USA, deciding
Respondent No. 4 position to similar to Google VS Costeja case
where “The territorial scope of the Directive, the Court observed
that Google Spain is a subsidiary of Google Inc. on Spanish territory
and, therefore, an 'establishment' within the meaning of the
directive. The Court thus endorsed the Advocate General's view
that Google Inc. and Google Spain should be treated as a single
economic unit. Since many of these companies happen to be
American, the data about users from other countries usually lies in
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servers in the United States. Access to them is controlled by US law.
The Respondent No.3 & 4 also establish its position as
intermediaries as per ITA act 2008 section clause (w) of sub-section
(1) of section 2 i.e. online-market places. The copies of Respondent
No.4 Server ownership details here enclosed herein as Annexure P-
13.
31. That it is pertinent to mention that petitioner rely on this court to
exercise it’s “right to be forgotten”, In India it can be seen in under
Rule 3(2) of the Intermediary Guideline Rules, 2011 vide
notification no. G.S.R. 314(E) framework, under Section 79 of the
ITA Act 2008. Under this rule, intermediaries are liable for content
that is “invasive of another’s privacy”. That the broad definition of
intermediaries under the same rules (which includes search engines
specifically) and of “affected person”, the applicable law for online
content laid down in deciding case of EU Court of Justice’s
Decision in following cases:
a) “ Google V Costeja. In the Costeja case, the CJEU held
that Google Inc is subject to the requirements of the
Directive under Article 4(1)(a), through the presence in the
EU of subsidiaries acting as sales agents for its online
advertising service. The Court held that the personal data
in Google Inc’s search engine was being processed “in the
context of” the activities of its Spanish subsidiary, because
the sale of advertising space by Google Spain was the
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means by which its search engine was rendered
economically viable. The Court spoke of an “inextricable
link” between the two activities”
b) “That in another recent case of japan District court rules
against Paedophile in 'right to be forgotten' online case by
Honurable Judge judge, HisakiKobayash.”
c) “That in India on January 2017 the Honourable Karnataka
High Court upheld the right to be forgotten, in a Cr.P
1599/2015 involving a woman who originally went to
court in order to get a marriage certificate annulled,
claiming to have never been married to the man on the
certificate.” The copies of article on judgement/order here
enclosed herein as Annexure P-14
32. That the Right to forgotten under article 17 of EU directives and
Information Technology (Intermediaries Guidelines) Rules, 2011
under section 79, are in equivalent terms. That the grounds to
exercise article 17 of EU directives “The data subject shall have the
right to obtain from the controller the erasure of personal data
relating to them and the abstention from further dissemination of
such data, and to obtain from third parties the erasure of any links
to, or copy or replication of that data, where one of the following
grounds applies:
Petitioner comparison tables of events with explanation of
exercising “right to forgotten” against respondent no. 4 :
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Article 17 EU directives
grounds
Petitioners commentary in
establishing its case facts to “Right
to forgotten” on reasonable man
test:
(a) the data are no longer
necessary in relation to the
purposes for which they
were collected or otherwise
processed;
The data was required till the time of
payment authorisation and up to
delivery of requested online food. But
Respondent no.4 retain the data for
unlawful purpose, even though
Petitioner was guest user mode no
signup of account.
(b) the data subject
withdraws consent on
which the processing is
based according to point (a)
of Article 6(1), or when the
storage period consented to
has expired, and where
there is no other legal
ground for the processing of
the data;
The data storage period-expired post
exist of Petitioner from Respondent
No.4 IP address and by completing
and delivering its order.
The Petitioner listed in full block
category list that prohibit Respondent
No.4 send him UCC messages. No
lawful purpose also transmitting
outside India is unlawful.
(c) the data subject objects
to the processing of
personal data pursuant to
No notification was given to Petitioner
that Respondent no.4 was restoring its
data on permanent basis etc. or any
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Article 19; (Notification
obligation regarding
rectification or erasure of
personal data or restriction
of processing")
other intimation regarding its personal
data storage. Also, absence of
notification of cookie policies on
Indian website is deceptive in nature
to store Petitioner data unlawfully. On
the other hand, same Respondent. 4 in
UK have cookie policies on home
page.
(d) the processing of the
data does not comply with
this Regulation for other
reasons.
The processing of data is unlawful
because of deceptive in nature, forcible
compulsion of user agreement of site
& UCC messages was barred under
DND full block list.
33. That the definition of sensitive data is open and wide and not limited
to Rule 3 of 2011 notification. That the personal information or data
define in Information Technology Amendment act 2008 sec 2(1)
(o). That today with online payment method mandate a mobile
number and linked with many payment gateway and also linked
with BHIM app/aadhar give key links to one’s financial
information. That the software like for example flexispy and Mspy
in market can be easily used to track one’s location and read one’s
phone messages or divert one phone SMS to computer source for
obtaining OTP, phone no. can also be used for registering one
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number for virtual calling service setup where one not in need of
OTP, just miss call enough to registered such service, one phone
number can used to use payment gateway like paytm and mobikwik
with endless possibility on computer system, someone can gains
temporary access to cell phone without owner knowledge, they can
download software or an app to give them the ability to listen to
your phone conversations and to get any information you talk about
on your cell & can connect to your phone gps and by hacking into
public Wi-fi or Bluetooth connections to gain access to easily
accessible and unprotected information. That such activity
commonly known as PII (Personally identifiable information).
That National Institute of Standards and Technology, USA
consider phone number as part of Sensitive data or information and
OECD countries privacy principles, the term used is more often
"personal information", which may be somewhat broader: in
Australia's Privacy Act 1988 (Cth) "personal information" also
includes information from which the person's identity is
"reasonably ascertainable" covered by PII. That the tapping of
phone case Peoples Union for Civil Liberties [PUCL], the Supreme
Court recognized the fact that the right of privacy is an integral part
of the fundamental right to life enshrined under Article 21 of the
Constitution. This right can also be traced to Article 17 of the
International Covenant on Civil and Political Rights [ICCPR] to
which India is a signatory.
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34. That the Petitioner through this petition also likes to draw attention
on increasing number of incident on invasion & threat to privacy in
one’s person life from such online food aggregator which have no
fear of rules and statuary body of this country also missing guideline
regarding cookie polices and notification on use to information
provider in current legislation. That Respondent No.3 & 4 and other
such online food aggregator first of all obtain forcible consent in the
absence of free will and here Respondent No.4 facilitate guest user
in absence of popup cookie policies notification, that requires
websites to get consent from visitors to store or retrieve any
information on a computer, smartphone or tablet. That cookie
policies are designed to protect online privacy, by making
consumers aware of how information about them is collected and
used online, and give them a choice to allow it or not. That Cookie
policies/ Cookie Law/pop up notification as privacy legislation
place an important part under EU Directive to reduce online
privacy. That every country updated its own laws to comply for
cookie policies. That in the UK this meant an update to the Privacy
and Electronic Communications Regulations but in India it’s still
missing policies on cookies and email marketing in Information
Technology act 2000 and further amendments.
35. That in the light of the above stated facts and circumstances, is,
therefore, Respondent No.4 is in violation of hereby in complete
breach of:
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a) Privacy rights under article 21 of Constitution of India law
1950.
b) Sub rule (1), of Rule 5, Information Technology, SDPI
rules 2011, under section 43A, on obtaining its personal &
financial information on its server without lawful mode.
c) Sub rule (3), of Rule 5, Information Technology, SDPI
rules 2011, under section 43A, on failure to notify or full
disclosure to the Petitioner of such storage on its server on
permanent basis with outside territory of India.
d) Sub rule (4), of Rule 5, Information Technology, SDPI
rules 2011, under section 43A, on retain Petitioner
information for longer than is required for the purposes for
which the information may lawfully be used or is
otherwise required under any other law for the time being
in force.
d) Sub rule (9), of Rule 5, Information Technology, SDPI
rules 2011, by not putting any designate a Grievance
Officer and publish his name and contact details on its
website. The same repeated and directed by Allahabad
High Court in case of Amitabh Thakur Vs UOI, through
Secy. Ministry of Information technology. The copies of
article on judgement here enclosed herein as Annexure P-
14
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e) Failure to comply due diligence on discharging its duty
under sub rule (2) of rule 3 on due diligence of
Information Technology (Intermediaries Guidelines)
Rules, 2011, under section 79 on unlawful storage of
information and transmission to another computer located
outside Indian territory.
f) Sub rule (4) of Rule 3, of Information Technology
(Intermediaries Guidelines) Rules, 2011, under section 79
on failure to disable petitioner data within 36 hours post
written confirmation.
e) Regulations 7 of Information Technology (SDPI) Rules,
2011, under section 43A for violation of transfer of
information under SDPI rules 2011 for storing petitioner
data outside India territory (USA) without lawful contract
and bonafide consent.
f) Regulations 7 of Information Technology (SDPI) Rules,
2011, under section 43A by storing data outside territorial
jurisdiction of India where petitioner or other user data is
not protected by any law. The Privacy Act of 1974, title 5
U.S.C. 552a, Section 3 (a) define “Individual” means a
citizen of the United states or an alien lawfully admitted
for permanent residents.
g) Section 72A & 43A of Information technology
Amendment act 2008 for unlawfully access and misusing
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Petitioner personal information or data for wrongful gain
in Respondent No.4 business promotion to achieve
financial gain and unfair trade practice.
36. That Respondent No. 5 is “Access provider” to Respondent No. 3
& 4 i.e. “Telemarketing service user”, as within definition of
regulations 2 (a) & (z) of Telecom commercial communications
customer preference regulations, 2010. That Respondent No. 5
casted upon statutory duty as Access Provider to maintain and
operate a register on behalf of TRAI that called “the Provider
Customer Preference Register” for registering the preference of the
subscriber under –(a) fully blocked category; or(b) partially blocked
category-in accordance with the regulation4specified in Schedule-I
to the Telecom commercial communications customer preference
regulations, 2010 (TCCCPR 2010).
37. That the Respondent No.5 is also casted a statutory duty under
regulations 14 & 17 of TCCCPR 2010 to ensure that telemarketer is
register with authority first and obtain unique Id number as
telemarketer which is valid for 3 years only, before reaching
Respondent No.5 or providing Access provider service to
telemarketer for such UCC messages. That under TCCCPR 2010
regulation 12 suggests that no subscriber, who is not registered with
the Authority as a telemarketer under these regulations, shall make
any commercial communication. That Respondent No.5 duty is to
ensure such requirement as agency on behalf of authority. That the
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Petitioner when unable to find such Telemarketer registration details
for Respondent No.3 & 4 and therefore further requested the same
information from Respondent No.5 on email dated May 6th, 2017 for
Respondent No.3 & 4, which till date ignore and refused by
Respondent No.5 nor respondent replied to notice served upon. The
copies of printout of email communication with Respondent No. 5
officer Sanjeev Kumar enclosed herein as Annexure P-15.
38. That the Respondent No. 5 obligations of the access providers is
define under Regulations 20 Sub regulation 2 (a) that every
Originating Access Provider shall ensure that no telecom resource is
provided to a telemarketer unless has registered itself with the
Authority and has entered into an agreement with Originating
Access Provider i.e. Respondent No.5, in accordance with the
provisions in Schedule IV to these regulations. That further sub
regulation 2 (f) of 20 that every Access Provider shall ensure that a
telemarketer shall, before sending any SMS to a telecom subscriber,
scrub the telephone number of the Subscriber/Petitioner with the
database received from National Customer preference register and
sub regulation 2 (g) of 20 that every Originating Access Provider
shall ensure that no telemarketing SMS, other than SMS opted by
the subscriber is sent to Petitioner and sub regulation 2(i) of 20
suggest that every Originating Access Provider shall filter all
promotional SMS received through the telecom resources allocated
to the telemarketers to ensure that only promotional SMSs, preferred
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by a Petitioner/Customer in his preference registered with the
National Customer Preference Register, are sent to Petitioner. That
the Respondent No. 5 failed to oblige its duty & in clear violation as
suggested under TCCPR 2010 Regulation.
39. That Respondent No.5 is charge of in the consequences for failure
of Access Providers to stop unsolicited commercial communications
to Petitioner registered full block category DND phone number
under regulation 22 of TCCPR 2010. Respondent No.5 is found to
have contravened of the provisions of these regulations, it shall,
without prejudice to any penalty which may be imposed under its
license, be liable to pay an amount, by way of financial disincentive,
an amount of Rupees one lakh and in case of second such
contravention, to pay an amount of rupees five lakh and rupees ten
lakh in case of third or each subsequent such contravention.
40. That the Respondent No.5 not even failed to oblige its duty as
agency/access provider on behalf of authority but also completely
ignore Petitioner request on provide him details and maintain
Transparency by providing requested details as on 5th May 2017
made on email by Petitioner. That the RespondentNo.4 as per sub-
regulation (9) of regulation 19, need to intimate to the complainant,
within twenty-four hours, the result of the investigation and the
action taken by the Originating Access Provider on his complaint.
That Respondent No.5 not only all the time failed to upload the
status online with NCCPTRAI website but also did not update to the
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complainant/Petitioner as required by regulations. That the
Respondent No.5 in fact strategically called Petitioner numerous
time only after passing three days by it’s different–different
executive to confirm petitioner it’s name, ID and date only, which is
already submitted via SMS already, the respondent no.5 officer call
petitioner multiple times on same day and with no intention to gain
purposeful information. That it is pertinent to mention if petitioner
missed Respondent no.5 call and try to call same number mention
in service SMS, then that to be found incorrect. That it is germane to
mention by this way Respondent no.5 use its trick to avoid
complaint and if petitioner choose 1909 to call the petitioner waiting
reach 5+ minutes and many times they refused to speak in English
although Respondent No.5 IVR menu is in English and Hindi. The
Respondent No.5 actions in fact harass Petitioner in way to make
Petitioner realise that Petitioner has done a crime to report UCC
messages to Respondent No.5. That post week when Petitioner start
receiving numerous messages that the complaint has been resolved
on Petitioner satisfaction.
41. That Petitioner on 11th May 2017 write to 1909@airtel.com email id
and mark cc to NCCPTRAI helpline raised complaint for such
messages which indicate that the complaint was resolved as
Petitioner satisfaction, but same time petitioner doesn’t have any
update of his complaint. That the petitioner raise issue of calling
him numerous time, denied attending call that petitioner speaking in
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English while communication, which Petitioner is comfortable with
and also to share the details on its complaint and what step has been
taken and without speaking to Petitioner in detail for such
complaint. That to surprise and shock to Petitioner that the
RespondentNo.5 after receiving email from Petitioner reply to
Petitioner and inform that no action was taken because of
complaints closed under “Invalid” due to incomplete/incorrect
information and demanded information which was not required as
per NCCPTRAI website. That the RespondentNo.5 action &
response is contradictory in favour of Telemarketer. That one hand
the Respondent No.5 replied on through text that the problem was
resolved (without disclosing its steps) and on other hand on email
deny attending such complaints because of reason in enclosed email.
The copies of article of email communication between with
Respondent No.5 and complaint resolved response to Petitioner here
enclosed herein as Annexure P-16.
42. The Respondent No.5 strategy to avoid such complaint to favour its
Access provider business can be seen by its action i.e. calling
complainant after three days of complaint and asking only name,
time and ID which received by complainant that such information
already send via SMS by complainant and later taking excuse that
information was not adequate to take action so the penalty can be
avoid against such telemarketing companies and flourish
Respondent No.5 business income through and as access provider.
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That it pertinent to mention that since June 9th, 2017 petitioner has
lodged many UCC complaint but the Respondent stop sending
petitioner complaint reference no. but instead just a message that
promise that petitioner received reference no. within 24 hrs but
unfortunately the respondent never did so to avoid complaints.
43. That it is also Germaine to mention that Respondent No.5 who has
casted a duty to act as an agent of TRAI and fulfil its obligation to
filter such marketing messages before sending it to Petitioner DND
categories, in fact on the other hand Respondent No.5 itself send
UCC messages to Petitioner’s Mobile no. that listed in DND full
block list category. That it is also relevant to mention here that
Respondent No.5 behaviour and lack of seriousness on controlling
such marketing message can be seen from in past apologies to ASCI
(Advertisements Standard council of India) on complaint made by
Petitioner earlier for Respondent No.5 illegal misconduct on
promoting its INR 29 Internet Pack as UCC messages through
USSD code (Unstructured Supplementary Service data). It is also
germane to mention that Respondent No.5 consider only one
message as complaint against telemarketer multiple UCC messages
send by same Telemarketer same day & time. TRAI impose penalty
as per no. of messages or offence repeated by numbers of times but
Respondent No.5 act here as safe guard to its telemarketers to
reduce its penalty. Copies of communication from ASCI & UCC
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messages complaint here enclosed herein here enclosed herein as
Annexure P-17.
44. That the Respondent No.5 fail to follow the standard guidelines as
prescribed by TRAI under statutory act and mislead the complainant
and further harass by calling complainant numerous time for same
complaint in single day and intentionally did not take necessary
information and further avoid such complaint as excuse. The
Respondent no. 5 in violation of TCCPR 2010 Regulation for:
a) Sub Regulation 2 (f), (g) and (i) of 20 TCCPR 2010.
b) Failure of Access Providers to stop unsolicited commercial
communications from Respondent No.3, 4 & various other
companies to Petitioner registered full block category
DND phone number under regulation 22 of TCCPR 2010.
c) Failure of sub-regulation (8) & (9) of regulation 19, need
to intimate to the complainant within time line, the result
of the investigation and the action taken by the Originating
Access Provider on his complaint
d) Failure to update the complaint status with National
consumer registry or NCCPTRAI website under "UCC
Complaint Registration Status".
e) Adopting unfair fair-trade practice and arbitrary method
for resolving complaint by itself and within interest of its
business and its telemarketing company without speaking
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to customer or updating the complainant status or action
taken against complaint
f) Adopting unfair trade practice and providing misleading
information by not disclosing complaint reference no. to
avoid such complaint.
g) For considering only one complaint against multiple UCC
messages send by same telemarketer, act as safeguard and
helping telemarketer to bring down his penalty cost.
h) Sending UCC messages to petitioner’s mobile to promote
its services and related third party.
i) ITA act 2008, section sec.72A for disclosing personal
information in breach of lawful contract or without the
petitioner consent, to respondent no. 5 third party affiliate
and business partners knowingly and intentionally.
j) Disclosing and sharing access to petitioner data /personal
for sending UCC messages to petitioner DND restricted
mobile number by such telemarketing companies in breach
of lawful contract. That such access been done with
intention that is likely to cause wrongful gain to
respondent no. 5 to flourish its telemarketing business.
k) Section 43 A on failure to protect petitioner privacy and
data, acted negligent in implementing and maintaining
reasonable security practices resulting in wrongful
financial gain to respondent no.5 telemarketing services.
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45. That the Respondent No.1 is Ministry of Electronics & information
Technology that is responsible for maintaining balance between
business facilitation, promotion and citizen fundamental rights to
privacy. That Respondent No.1 in its National Cyber Security
Policy -2013 objectives responsible for creating a secure cyber
ecosystem in the country, Strengthening the Regulatory framework,
create awareness, generate adequate trust & confidence in IT
systems and transactions in cyberspace and thereby enhance
adoption of IT in all sectors of the economy. That Respondent No.1
also required to protect information while in process, handling,
storage & transit so as to safeguard privacy of citizen's data and for
reducing economic losses due to cybercrime or data theft also
required to create a culture of cyber security and privacy enabling
responsible user behaviour & actions through an effective
communication and promotion strategy. That the RespondentNo.1
through its SDPI and Intermediary rules 2011 indicate its
commitment towards freedom of speech and expression, citizen
privacy rights. That RespondentNo.1 is responsible to safeguard
citizen rights and strike balance between economic utility of
business/corporate and citizen rights.
46. That the Respondent No. 1 refused to act on the plea of petitioner
raised through formal complaint to Respondent No.1 and also on
official complaint lodged with Respondent through central
grievances portal PGPRTL complaint no. MINIT/E/2017/01586.
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Copies of print out of complaint to Respondent No.1 through & it’s
response to petitioner from respondent no.1 to here enclosed herein
as Annexure P-18
47. That through this Writ petition, Petitioner like to draw the attention
towards Ministry of Electronics & Information Technology
(MIETY) on Digital India, UDAI, BHIM application & startup
India programme where Government of India actively promote the
advantage of “Nation of Smart phone user” & “Nation of most
youngest population” promoting digital India campaign & IT
based innovative startup which favourable to many citizens like
Petitioner to control corruption, more earning & employment
opportunities and in many ways benefit the society & Nation in
general, but on the other side we have forgotten the right of privacy
as basic fundamental rights and as basic sign of progressive society.
That the Petitioner believes it must be safeguarded for all Indians
though the constitution and statute time to time due to complexity
and advantages and disadvantages attached to Internet. That
throughout the world working progressively and actively and
introduce timely manners changes like EU (European Union) in
Article 12 of the Directive 95/46/EC that EU gave a legal base to
Internet protection for individuals. In 2012 the European
Commission disclosed a draft European Data Protection Regulation
to supersede the directive, which includes specific protection in the
right to be forgotten in Article 17. That Respondents No. 3 & 4 in
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Question also carry out their business and abide by USA & EU
laws, the same should be followed & respected by Respondents
No.3 & 4 in India as their moral and social responsibility to gain
trust and applause of citizen. That Respondent No 3 & 4 being
MNC and leader in industry instead of taking advantage of Indian
cyber legal system like absence of law on cookies policies, email
marketing, Internet consent through automation, shall set example
for other player in Market and contribute their knowledge in
developing secure and friendly cyber ecosystem with Respondent
No.1.
48. That it is pertinent to mention that Petitioner never with free will
subscribe for Respondent No.3 & 4 UCC messages promotions
news & offers, other than on 16th March 2017, the Petitioner
subscribe to Respondent No.3 newsletter to expose Respondent
No.3 claim in its privacy policy under clause 5. That on 22nd March
2017 Petitioner opt out/unsubscribe all commercial communications
by writing an email for unsubscribe. That it is pertinent to mention
that Respondents No. 3, 4 & 5 fail to act in good faith and ignore
Petitioner request all request and communication. That Respondent
No. 3,4 & 5 with all due respects fail and violates statutory law of
TCCPR 2010, Information Technology Amendment Act 2008,
Information technology SDPI acts & Intermediary Rules
notification, 2011 & breach Petitioner privacy rights under article 21
of Constitution of India.
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49. That Respondent No. 3 & 4 deceive its user to obtain such unlawful
consent and using personal data without lawful permission for UCC
messages without carrying out due diligence shows no fear and
ignoring the statuary body enforcement policies i.e. here that
Petitioner as guest user in case of Respondent No.4 and also is in
DND list/unsubscribe in case of both RespondentNo.3 & 4. That the
Petitioner has no faith in Respondent No.5 to act with clean hands
as Respondent No.5 stress and disturb Petitioner state of mind
through un-purposeful calls and SMS and Respondent No. 1 already
within less than 24 hours refused to take any action.
50. That That the Respondent No.2 is the Ministry of
telecommunications which is casted with the responsibility to
regulate and monitor the telecom service provider company such as
Respondent No.5 through its establish Telecom Authority i.e.
Telecom Regulatory Authority of India (TRAI) act for consumer
matters. That the Respondent No.2 unfortunately fail to monitor the
conspiracy made between access provider and continuous violations
of such policies by not uploading the status on NCCPTRAI portal
and lack of interference to safe guard to protect its citizen interest.
That its surprise petitioner that every email while making complaint
cc to NCCPTRAI helpline email id and receive no response and
single call over his concern. That the Respondent No.2 rules of
registering complaint from petitioner within 3 days is strict comply
on petitioner but another hand respondent no.5 is in no such
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compulsion of meeting its TAT of 72 hours , or uploading
comments and action and so on. That the petitioner in view that
Respondent No.2 need to review some policies for welfare of
citizens to safeguard the consumer rights, privacy rights and related
of every citizen in related business through statute/or and law from
time to time.
51. That it is pertinent to mention that the issue of privacy rights is not
limited to Respondent no 3 and 4, but the petitioner over the time
before filing this petition observed other online aggregator business
such as Uber a cab online aggregator operating in India also not
comply with privacy policy and keep send notification within as
Mobile app and if notification turn off by petitioner start sending
UCC messages on its offer and schemes and also share the rider data
with third party for its product promotion. That it germane to
mention that Uber cabs app doesn’t have any provision in its
settings of app where a person can withdraw such permission and
stop Uber to share its data with third party or /and stop Uber for
sending rider/user of app for UCC messages. That the Petitioner
over the time received many UCC messages from different
companies and doesn’t summon all of the companies that’s
operating in India and violating citizen privacy rights for its
financial gain and unfair trade practices. The petitioner through this
Writ petition like to seek Honourable court how in this country the
statutory & enforcement body i.e. Respondent No.1 & 2 policy
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maker and it’s other agent like Respondent No.5 has fail to enforce
and safeguard its citizen privacy rights and allow such online
aggregator to exploit and let interfere one’s personal life and
freedom. Copies of print out of UCC messages received from other
companies here enclosed herein as Annexure P-19.
GROUNDS
A. Because that Information which infringes right of privacy
of the others and includes acts of cyber bullying,
harassment or stalking considered as violation of privacy
rights engraved under Article 21 of India constitution Law.
B. Because that the judiciary has recognised right to privacy
as a necessary ingredient of the right to life and personal
liberty. The Honourable Supreme Court of India has
interpreted the right to life to mean right to dignified life in
Kharak Singh case, especially the minority judgment of
Subba Rao, Honourable J. In Gobind v. State of M.P.11,
Mathew Honourable J., delivering the majority judgment
asserted that the right to privacy was itself a fundamental
right.
C. Because in Sharda v. Dharmpal the Honourable Supreme
Court said that though the right to personal liberty has
been read into Article 21, it cannot be treated as an
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absolute right. It concluded that one has to maintain a
balance between the rights of a citizen and the right to
privacy. It ultimately requires a healthy and congenial
interrelationship between the social good and the
individual liberty.
D. Because the Respondents No. 3 & 4 failed to appreciate
that the so-called consent sought to be obtained in the
absence of free will or by misleading/incomplete
knowledge or by deceiving registered user/customers and
also such consent not unenforceable solely on the ground
that such electronic form or means was used for that
purpose.
E. Because that the manner in which consent was being
obtained by Respondent No.3 viz., by providing a button
SIGNUP, in the first frame of the opening screen of the
online portal itself exhibited the intention that the
registered user/customer ought not to even peruse the
entire policy.
F. Because unregulated violation of privacy of citizens
possess grave threat to the Freedom of Life and liberty.
Such freedoms are to be protected against misuse and the
Respondent No.1 herein as State has a duty to regulate any
breach of these rights.
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G. Because the Respondent No. 3 & 4 in its registered
user/customer account fail to maintain transparency and in
violation of due diligence, good faith & free will that is
essential part of contract between registered
user/customer/Petitioner and Respondents No. 3 & 4.
H. Because existence of a valid contract forms the crux of
any transaction including an e-commerce transaction (as
per section 10 A of Information technology Amendment
act 2008), e-contracts like all other contracts are governed
by the basic principles governing contracts in India i.e. the
section 14 of Indian Contract Act, 1872 (“Indian Contract
Act”) which inter alia mandate certain pre-requisites for a
valid contract such as free consent and lawful. Some of the
important requirements of a valid contract under the
Indian Contract Act is one of primarily condition is that
the contract should be entered into with the free consent of
the contracting parties.
I. Because section 16(3) of the Contract Act provides that
where a person who is in a position to dominate the will of
another, enters into a contract with him, and the
transaction appears, on the face of it or on evidence
adduced, to be un-conscionable, the burden of proving that
such contract was not induced by undue influence shall lie
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upon the person in a position to dominate the will of the
other.
J. Because the Respondent No. 3 portrays that the
promotional newsletter is the only way of receiving
Respondent No.3 promotion and offers, but in real terms
the Respondent No.3 never send any letter to its registered
user/customer/Petitioner and in fraudulent and deceptive
manner obtain the consent of registered user/customer for
other purpose i.e. direct promotional through text
messages.
K. Because Respondent No. 4 attempted a well-planned way
to deceive the registered user/customer and obtaining its
consent by providing misleading and incomplete
information, in absence of cookie polices, took advantage
of online food order platform and collecting & accessing
registered user/customer data without obtaining consent
for promotional purpose that is in breach of The
Information Technology Amendment act 2008 & also in
violations of TRAI guidelines telecom commercial
communications customer preference regulations, 2010 for
sending UCC messages to listed DND full block category
list phone user.
L. Because Respondent No.3 & 4 is in breaching mutual trust
and lack of transparency. Respondent No. 3 deceiving
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registered user/customer by making him/her understand
that he/she is signing for newsletter subscriptions and
Respondent No.4 in absence of notifications or cookie
policies, instead are obtaining registered user/customer
consent for push notification for UCC SMS which is
prohibited under Telecom Commercial Communications
Customer Preference Regulations, 2010”, and not meeting
the purpose of transactional SMS.
M. Because Respondent No. 3 intentionally and in fraudulent
purpose did not leave any choice or option with registered
user/customer post signup & on re-login to its user account
to subscribe or unsubscribed from such promotional SMS
indulge in Unfair Trade Practice defined in section 2(1)(r)
under Consumer Protection Act, 1986.
N. Because that Petitioner never in last 6 months received any
promotional letter but instead in name of newsletter
subscription for offer & updates Respondent No .3
obtained registered user/customer consent in fraudulent &
misrepresentation ways as defined in section 18(2) of
Indian contract act and using it further for unwanted and
illegal way of spamming registered user/customer phone
inbox with promotions to get brand recognition and
publicity and also Respondent No.3 fail to provide any
method for user to unsubscribe thereon and also falsely
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claim its legitimate ground under clause 5 of privacy
policy.
O. Because it’s not favourable to allow internet platform and
/or mobile applications like “Foodpanda” & “Dunkin
coffee” to obtain forcible “consent” of millions of
Registered user/customers in an entirely deceptive manner
and without informing them of the full consequences of
their privacy policies & terms of use of website – in a
country where the majority of registered user/customers
are not even equipped to read, much less comprehend the
terms of such privacy policies.
P. Because the registered user/customers of Respondent No.
3 & 4 who, by using the medium to order food online and
data owned by them, have been solely instrumental in
enabling Respondent No. 3 & 4 to earn huge revenues,
have no option but to delete the application in order to
protect and safeguard the privacy of their data and
information. In the humble submission of the Petitioners,
this option is no option at all in this era where availing
over Internet services like Respondent No. 3 & 4 has
become a daily need and necessity for millions of urban
citizens.
Q. Because any compromise with the privacy and sanctity of
the private and confidential information of the millions of
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registered user/customers / consumers of internet
messaging services such as Respondent No. 3 & 4 shall be
in direct violation of not only the private, personal and
public rights of the citizens of the Country, but also the
statutory scheme envisaged under the Information
Technology Act, 2000. In this regard, the attention of this
Hon’ble Court is invited to the provisions of Section 72 A
of Information Technology Amendment act 2008 reads as
follows:
“Save as otherwise provided in this Act or any other
law for the time being in force, any person including an
intermediary who, while providing services under the
terms of lawful contract, has secured access to any
material containing personal information about
another person, with the intent to cause or knowing
that he is likely to cause wrongful loss or wrongful gain
discloses, without the consent of the person concerned,
or in breach of a lawful contract, such material to any
other person shall be punished with imprisonment for a
term which may extend to three years, or with a fine
which may extend to five lakh rupees, or with both.”
R. Because it would be entirely impermissible and illegal for
the internet based online food aggregator as those
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provided by Respondents No. 3 & 4 to not follow the
binding provisions of the Information Technology
(Reasonable security practices and procedures and
sensitive personal data or information) Rules, 2011, &
hereinafter referred to as the “Intermediary 2011 Rules”)
notified by the Central Government on 11.04.2011 read
with Section 43A & under section 79, Information
Technology (Intermediaries Guidelines) Rules, 2011.
S. Because the Respondents No. 3 & 4 is in violation of the
fundamental rights and in breach of the rights of privacy
that an individual’s private information is protected from
public scrutiny and no notification has been given to the
individual regarding changes in authorization and consent
also restricting its choice & freedom to unsubscribe, the
same is thus violate of Article 21 & article 19 of the
Constitution of India. On the other hand, such online
aggregator changes policies and well notify the registered
user/customer in advance.
T. Because the concept of privacy and data protection were
not addressed in any Indian legislation. In the absence of a
specific legislation, the Honourable Supreme Court of
India in the cases of Kharak Singh vs. State of UP, and
People's Union of Civil Liberties v. the Union of India
recognised the “right to privacy” as a subset of the larger
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“right to life and personal liberty” under Article 21 of the
Constitution of India.
U. Because the terms “consent” and “disclosure” in the SDPI
2011 Rules should be supported by notification of
authorization as per rules 5(3) would deserve to be
interpreted / defined so as to ensure that the entities
providing internet services such as Respondent are obliged
to make full and true disclosure of the effect and
consequences of their so-called “Privacy Policies” and
only after making such full and true disclosure, the entities
would be permitted to operate / provide their services after
obtaining an educated and well-informed consent of the
registered user/customers / consumers.
V. Because Section 43A of the Information Technology Act
2000 titled “Reasonable practices and procedures and
sensitive personal data or information Rules, 2011” which
provide a framework for the protection of data in India
(“Data Protection Rules”). The Data Protection Rules,
inter alia, set out compliances which to protect SPDI
(India's IT Ministry adopted the Information Technology
Reasonable Security Practices and Procedures and
Sensitive Personal Data or Information) Rules ("Rules")
which took effect in 2011) in the electronic medium by a
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corporate entity which possess, deals with or handles such
SPDI such as:
i. The need to have a privacy policy in accordance
with the parameters set out in the Data Protection
Rules;
ii. The need to obtain consent in a specific manner
from the provider of SPDI;
iii. The need to provide an opt out option to the
provider of SPDI;
iv. The need to maintain reasonable security
practices and procedures in accordance with the
requirements of the Data Protection Rules.
W. Because Petitioner mobile number is listed with NDNC
registry from 17th Dec 2016 as full blocked category list.
Respondent No 5 in capacity of agency of authority, as
well as Respondent No.3 & 4 that not only violated the
TRAI rules 2010 and regulations as well as the (Indian)
Information Technology Amendment Act, 2008 under
section 72A & 43A and liable to pay Petitioner (Civil) and
punishment (Criminal) in case of misusing Petitioner
personal data and violation of contractual terms in respect
of personal data.
X. Because Respondent No.3 & 4 is in breach of petition
privacy rights and have intentionally and wrongful
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purpose gained unauthorised access to Petitioner personal
information and further used such personal information in
breach of privacy rights, violation of TRAI acts &
guidelines. That the privacy of a person is further secured
from unreasonable arrests under Article 21 that the
personal liberty in Article 21 is of the widest amplitude
and it covers a privacy of rights which constitute the
personal liberty, secrecy, limited and protected
communication viz. life and personal liberty, right to move
freely, freedom of speech and expression.
Y. Because Respondent No. 3 & 4 action establish criminal
breach of trust and violation privacy rights. That the
Respondent No.4 & 5 unauthorized & illegal way access
Petitioner personal information make Respondents liable
and punishable under sec 420 of Indian penal code. That
the main principles on privacy and data protection
enumerated under the Information Technology
Amendment Act 2000 are defining data, civil and criminal
liability in case of breach of data protection and violation
of confidentiality and privacy.
Z. Because it is to be stated that Respondent No. 3 & 4 also
in breach of section 72A of ITA act 2008, knowingly and
intentionally, without obtaining Petitioner lawful consent
and in breach of the lawful contract make Respondent
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No.3 & 4 liable, also made punishable with imprisonment
for a term extending to three years and fine extending to
INR 5,00,000.
AA. Because Respondent No. 3 have failed to oblige to the
terms and conditions agreed upon by both the parties
under the electronic agreement between them. That it is
stated that after the execution of the aforesaid agreement,
Respondent No.3 deliberately and intentionally with the ill
intent continuously to disrupt & breach Petitioners privacy
rights, to which Petitioner have on several occasions have
raised objections and also requested Respondent No.3 to
discontinue the aforesaid misconduct. It will also not be
out of place to mention that RespondentNo.3 on various
occasions. That Respondent No.3 claim that on specific
way through completing the order on 1st Nov 2016
Petitioner given her consent is white lie and to which
Petitioner hold another registered user record who never
completed and place the order still getting UCC messages
and reserves the right to produce such evidence anytime if
Honourable court demand during legal proceedings.
BB. Because Respondent No.3 fail to obliged its clause 5 of
Privacy policy and did not left Petitioner any steps or other
procedure to unsubscribe from direct promotional
messages, none of Respondent No.3 commercial
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communication has option or step or procedure to guide
Petitioner as claimed by Respondent No.3 in clause 5 on
how Petitioner can unsubscribe and also Respondent No. 3
intentionally didn’t provide any other option other than
newsletter subscriptions, imposing its direct promotional
messages as compulsion and mandatory to avail
Respondent No. 3 services.
CC. Because Respondent No. 3 & 4 in violation of unfair trade
practice restrict under competition act 2002, intentionally
taking advantage to create monopoly and brand
recognition against its competitor and not following
worldwide industry practice for subscribe or unsubscribe
from such promotional message, leaving
Petitioner/registered user/customer no choice but left
intentionally user to struggle and him/herself find out the
ways to unsubscribe. That on the other hand Respondent
No 3 & 4 by just tick obtain & visiting website for placing
order obtain the user consent which is inequitable and
arbitrary by putting Respondent No.3 & 4 itself in
advantageous position.
DD. Because Respondent No. 1, 2 & 5 failed to honor and
observe the principles of natural justice and
audialterampartem.
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EE. Because the Respondent No. 1,3,4 & 5 failed to act on the
request of Petitioner and repeatedly in violation of telecom
authority DND laws and in breach of Petitioner article 21
rights to privacy.
FF. Because Respondent No.1 failed to protect citizen Right to
privacy that has been protected in a number of
conventions., the Universal Declaration of Human Rights,
1948 (UDHR) under Article 12 provides that:
"No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence, or to
attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such
interference or attacks."
The UDHR protects any arbitrary interference from the
State to a person’s right to privacy. Similarly, International
Covenant on Civil and Political Rights, 1976 (ICCPR)
under Article 17 imposes the State to ensure that
individuals are protected by law against “arbitrary or
unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and
reputation. Thus, ensuring that States enact laws to protect
individual’s right to privacy. India has ratified the above
conventions.
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GG. Because the Honurable Supreme Court in the case of R.
Rajagopal v. State of Tamil Nadu, for the first time
directly linked the right to privacy to Article 21 of the
Constitution and laid down:
"The right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of this country by Article
21. It is a "right to be let alone". A citizen has a right to
safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education
among other matters. None can publish anything
concerning the above matters without his consent whether
truthful or otherwise and whether laudatory or critical. If
he does so, he would be violating the right to privacy of
the person concerned and would be liable in an action for
damages."
HH. Because the Shah Committee recommended that the
legislation on right to privacy must harmonize all statutory
provisions that relate to privacy. As per the Committee
Report submitted in October 2012, the one of major
recommendations of the justice A P Shah Committee were
as follows:
“Individuals would be given the choice (opt-in/opt-out)
with regard to providing their personal information and
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the data controller would take individual consent only
after providing inputs of its information practices;”
where in this case the Respondent’s in question has
purposefully shown such opt-in/opt-out method least
visible to registered and also limit the choice of individual.
II. Because the Respondent No. 3 & 4 here as
intermediary/subsidiary of MC companies Foodpanda
GmbH & DD IP Holder LLC, on whose computer system
the information is stored or hosted or published outside
Territory of India, upon obtaining knowledge by itself or
been brought to actual knowledge by affected/aggrieved
person in writing or through email signed with electronic
signature about any such information as mentioned in sub-
rule (2) above, shall act within thirty six hours and where
applicable, work with user or owner of such information to
disable such information that is in contravention of sub-
rule (2).
JJ. Because the Respondent No. 4 as intermediary not qualify
for immunity under section 79, Information Technology
(Intermediaries Guidelines) Rules, 2011, and shall amount
editing or/and storing of Petitioner personal information as
specified in sub-rule: (2) and further knowingly personal
information stored &carried out onward transmission or
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communication to another computer resource; which is
based outside Indian territory without lawful consent of
Petitioner and without any need or lawful requirement to
complete the order against the Rule 7 of SDPI rules.
KK. Because the Petitioner has no choice and option to appear
before this court for justice as Petitioner exhaust its
timeline to raise official complaint with Respondent no.1,
central grievances cell, through DND text to NCCPTRAI
and received negative response from Government
authority.
LL. Because Petitioner was engaged through or resolution in
believe that Respondent No. 3 & 4 honor its request and
value him as it’s customer but instead they repeated their
acts.
MM. Because Respondent No.5 who is also agent to TRAI and
casted a duty to safe guard DND list owner against such
UCC messages on the other hand Respondent no.5 actions
leads to unfair trade practice and arbitrary favoring its
telemarketer but not petitioner and Respondent No. 5
purposefully many occasion delay the process and harass
the Petitioner unnecessary by numerous call and seek
additional information which was also not required by
NCCPTRAI website, update the resolve queries without
Petitioner satisfaction and knowledge, ignore Petitioner
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numerous request on information, fail to update
information as required under TCCPR 2010 on
NCCPTRAI website.
52. The Petitioner have no alternative efficacious remedy other than
to invoke the extraordinary jurisdiction of this Hon’ble Court
under Article 226 of the Constitution.
53. The Petitioner has not filed any other petition before this
Hon’ble Court or before the Hon’ble Supreme Court on the facts
and circumstances of the present case and in respect of the relief
prayed for, in the present petition. Therefore, it is submitted that
the invocation of writ jurisdiction of this Hon’ble Court is
maintainable and the Petitioner has no alternate efficacious
remedy under any other statute in respect of the relief prayed for,
in the writ petition.
54. That the Respondent No. 1, 2 & 5 is located within the territorial
jurisdiction of this Hon’ble Court and, whereas the respondent
no 3 & 4 is a foreign Company, operating business with their
subsidiary companies in Delhi & NCR. The Offices of the
Respondent No. 5 have it’s business operations within Delhi.
Hence, it is submitted that this Hon’ble Court has territorial
jurisdiction to entertain and adjudicate the present writ petition.
55. That the annexures annexed are true copies of its respective
originals.
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PRAYER
In the facts and circumstances of the case and in the interest of justice,
it is humble prayed that this Hon’ble Court may be pleased to:
(i) Issue a writ of mandamus and/or any other appropriate writ,
order directing Respondents no. 2 or any other appropriate
authority to list Respondent no. 3 name in blacklist of
telemarketer under regulations 18 (2) (b) of TCCPR 2010 for
two years from immediate effect.
(ii) Issue a writ of mandamus and/or any other appropriate writ,
order directing Respondents no. 2 or any other appropriate
authority to impose penalty on Respondent no. 5 under
regulations 22 of TCCPR 2010 as consequences of failure access
to stop unsolicited commercial communications.
(iii) Issue a writ of mandamus and/or any other appropriate writ,
order directing Respondents no. 1 or any other appropriate
authority to investigate Respondents No. 3 & 4 obligations in
relation to protection and safety of privacy of data of petitioner
or subscribers / registered user/customers of “Foodpanda” &
“Dunkin Donuts” all over the territory of India by taking all
necessary steps / actions in discharge of their executive as well
as statutory functions.
(iv) Issue a writ of mandamus and/or any other appropriate writ,
order directing Respondents no. 1 or any other appropriate
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authority to cease the business operations of Respondent no 3 &
4 in India till further completion of investigation, ensuring
Respondent No 3 & 4 to fully comply with all statutory rules of
Information Technology act 2000 in relation to protection and
safety of privacy of data of petitioner or subscribers / registered
user/customers of “Foodpanda” & “Dunkin Donuts” all over the
territory of India.
(v) Issue a writ of mandamus and/or any other appropriate writ,
order directing Respondents no. 2 to investigate Respondent no.
5 obligations in relation to protection and safety of privacy of
DND user and its data against such Telemarketing companies all
over the territory of India by taking all necessary steps / actions
in discharge of their executive as well as statutory functions
including / regulations / guidelines for the protection of rights of
citizens/user and, that Respondent no. 5 fully comply with
statutory rules of Information Technology act 2000 & TCCPR
2010 regulations and in meantime till investigation cease
Respondent No.5 Access provider license for providing further
telemarketing service.
(vi) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
impose penalties under Information Technology Act 2000 on
respondent no 3,4 and 5 for unlawful access to petitioner or any
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Indian citizen personal data or information for purpose of
wrongful gain.
(vii) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
investigate on Respondent No. 3 and 4 transmitting petitioner or
other Indian user personal data or information, outside territorial
jurisdiction of India to ensure fully comply with all statutory
rules of Information Technology Act 2000, SDPI Regulations 7,
2011,
(viii) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
impose penalties on Respondent No. 3 and 4 for storing
petitioner or other Indian user personal data or information,
outside territorial jurisdiction of India, without legal consent and
in compliance to violation of Information Technology Act 2000,
SDPI Regulations 7, 2011.
(ix) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
order Respondent No. 3 and 4 courts to cease collecting
information of petitioner or any other Indian citizen users and
asked to delete all data that has been collected or shared
previously to ensure petitioner or other Indian user for Data
Protection and Freedom of Information.
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(x) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
take all actions including steps towards making Rules
under Section 87 of the Information Technology Act 2008 to to
avoid privacy breach of petitioner under article 21 of constitution
and or any other Indian citizen and make it compulsory for all
online aggregator to:
a. Making it mandatory to have laws on Cookie policies and
cookie pop up notifications for e-commerce websites.
b. Introducing law on automated decision-taking consent on
behalf of user/customer through Artificial intelligence or
Machine learning and Rights in relation to website
automation.
c. “Right to forget” to be exercise on e-commerce website
for guest mode shopping or purchasing.
d. Every message send on phone and email should directly
lead to unsubscribe option not to website or mobile app.
(xi) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
take all actions including steps towards making Rules
under Section 87 of the Information Technology Act 2008 to
make it compulsory for all online aggregator to obtain separate
consent for Direct promotion and make it mandatory to send
notification of such authorization by email and on phone so
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information provider/user aware of change in his/her consent or
authorization along with prayer no. II (d) above to avoid privacy
breach of petitioner under article 21 of constitution and or any
other Indian citizen.
(xii) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
take all actions including steps towards making Rules
under Section 87 of the Information Technology Act, 2000 to
ensure that all online aggregator communications has and visible
opt-in & opt-out step to avoid privacy breach of petitioner under
article 21 of constitution and or any other Indian citizen.
(xiii) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
take all actions including steps towards making Rules under sub
section (4) of Section 12 & exercise its power under Section 13
of Telecom Regulation Authority Act 1997 (TRAI act) to:
a. abolish 3 days arbitrary policies to report UCC messages
with Access provider and extend it to reasonable time.
b. Impose penalty per day on access provider for delay in
resolving complaint post/over 72 hours.
c. DND complaint to be register for each UCC message even
if it is received from same telemarketer/alpha ID in same
day and different time.
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d. Mandatory notification through message to complainant
once the complaint with NCCPTRAI portal update and
available to view on website. The message should include
complaint reference number, date of complaint and alpha
id with link to web portal.
e. Resolution message must contain the complaint reference
number, complaint registration date and alpha id for which
complaint was resolved and summary of action taken, with
the link of NCCPTRAI web portal where same complaint
status is updated before sending such message to
complainant.
f. The access provider call to complainant should obtain
entire relevant information at once to process the
complaint, and post such communication its mandatory for
access provider to update its internal portal so duplication
of call could not be made to avoid further harassment of
complainant and as excuse later to escape complaint by
access provider companies.
g. The access provider in case of no contact point to
petitioner drop message with such number that have
incoming facilities.
h. That absence of such policies gives ample opportunity as
shield or excuse to Respondent No. 5 to favour its
telemarketing companies and form an excuse that contact
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point with complainant could not be made and due to
absence of information no further action can be taken
against telemarketing companies.
to avoid privacy breach of petitioner under article 21 of
constitution and or any other Indian citizen.
(xiv) Issue a writ in the nature of mandamus or any other writ or
direction in the nature thereof, directing the Respondent No. 1 to
take all actions and impose appropriate penalties upon the
respondent no. 3, 4 & 5 for acting in violation of concerned
statues, TCCPR 2010 Regulations, Section 43 A & 72 A under
Information Technologies Act 2000, Information Technologies
Intermediary & SDPI rules 2011 & impose penalties as for
acting against the provisions of the constitution.
(xv) Award Petitioner valid compensation for breaching its privacy
rights and such cost against Respondent No 3, 4 & 5.
(xvi) Such other and further orders as this Hon’ble Court may deem
fit.
Filed By:
Advocate in person
Arvind Singh
630, 1st floor, Dr. Mukherjee Nagar
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Delhi 110009
Contact: 9205385276
Email id:
arvind.singhdse@gmail.com
Parelegal.nassco@gmail.com
PLACE: NEW DELHI
DATE:
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