Edition 7: Proton challenges Karnataka HC's blocking order
Proton said that it had already disclosed information about one of the email addresses to the Swiss justice ministry in February 2025.
Proton is challenging the Karnataka High Court’s April 29 blocking order that directed the central government to begin proceedings to block the company’s end-to-end encrypted email service in India under Rule 10 of the 2009 Blocking Rules.
Filed on June 26 and listed to be heard today by a division bench of Acting Chief Justice Valluri Kameswar Rao and Justice CM Joshi, the Swiss company wants the court to set aside its April 29 order passed by Justice M. Nagaprasanna. The Tech Trace has seen Proton’s appeal.
Proton’s appeal is premised on three grounds: first; Proton had complied with a legitimate information request that was routed through the appropriate Swiss authorities in this case; second, Section 69A and Rule 10 of the 2009 Blocking Rules do not empower the court to pass a blocking order; and third, Proton was not served notice so it could not represent itself.
The Swiss company has called the blocking of an entire email service instead of specific accounts or content a disproportionate response and submitted that the judge should have maintained balance between M Moser and Proton’s rights. It said that the April 29 order was legally and factually incorrect.
The case began when M Moser Design Associates, an architecture and interior design firm with offices in India, USA, China, Hong Kong, Singapore, UK, Australia amongst others, filed an FIR over abusive and defamatory emails sent to its senior women employees from two Proton Mail addresses. The firm, amongst other things, had asked the court to “ban” Proton Mail in India.
Eventually, in an oral order on April 29, Justice Nagaprasanna directed the ministries of home affairs, and electronics and information technology, and the department of telecommunications to “initiate proceedings” under Section 69A and Rule 10 of 2009 Blocking Rules, “bearing in mind the observations made in the course of the order”. The court directed that until “such proceedings” were taken up by the Centre, the “offending” URLs would be blocked.
This order was uploaded to the Karnataka High Court website a month later, on May 30. Proton Mail has not yet been blocked by the Centre.
Proton claimed that it learnt about the April 29 oral pronouncement of the blocking only after it hired lawyers on receiving several queries from journalists and users about its email service getting blocked in India in May 2025.
The company said that the respondents in the case had not briefed the court about the most pertinent facts —on February 26, the company had already disclosed information to the Swiss justice ministry about one of the two email addresses that sent the abusive emails.
Proton gave Swiss justice ministry information about one email address
Proton said that the April 29 order saying that the company had not cooperated with the investigation was incorrect as the company had already provided Swiss authorities with information about one email address on February 26 on receiving a valid request.
The company alleged that the respondents had not brought this to the judge’s notice because of which in his April 29 order, he relied on the report of the investigation officer dated December 4, written before Proton’s disclosure.
Throughout its appeal, Proton argued that it was not allowed to transmit any data to foreign authorities directly, as per Swiss laws. Proton had said the same thing when I had reported in February 2024 that MeitY was looking to block ProtonMail at the Tamil Nadu Police’s request.
In its current appeal, Proton said that on February 21, the Swiss Federal Department of Justice and Police (FDJP), that is, the Swiss ministry of justice, requested the company for information about one of the email addresses, information that Proton disclosed on February 26.
Proton said that it had not received any information request for the second email address.
“This request [from the Swiss FDJP] followed the proper legal channels through the Swiss authorities as required by Swiss law, particularly Article 271 of the Swiss Criminal Code, 1937. This was the first properly routed legal request through the appropriate Swiss authorities,” Proton said.
Proton said that it discloses information only if it receives them from the Swiss Federal Police (SFP) for international police cooperation or from Geneva prosecutors through the Federal Office of Justice for other mutual legal assistance treaties (MLAT). Both SFP and FOJ are part of the Swiss FDJP.
India and Switzerland had signed an MLAT in February 1989.
Proton said that by providing information for the asked for email address, it had acted according to the Swiss Criminal Code and the MLAT between Switzerland and India.
It also said that both email addresses were deleted on December 3 after the CEN Crime Police Station asked it to do so on December 2. The act of deletion, noted in the December 4 investigation report by the police, shows that Proton acted, thus negating the April 29 order’s observation that Proton had not “immediately take[n] down or block[ed] the offensive mails”.
‘Court has no power to issue Section 69A blocking orders; Section 69A misinterpreted by court’
Proton argued that Section 69A empowers only the central government — not the court — to issue blocking orders under the provision.
It said that since the rules cannot exceed the remit of the parent act, rule 10 of the 2009 Blocking Rules cannot be read as empowering the court.
“If Rule 10 were to be interpreted as an empowering provision, it would be ultra vires its parent statute, i.e., Section 69A which clarifies that only the Central Government has the power to block information,” Proton submitted.
It argued that Rule 10 only provides the implementation mechanism for when an order for blocking is passed by a competent court. The court’s power to block the information, however, must arise from outside of Section 69A and 2009 Blocking Rules, such as Order XXXIX Rule 1 and 2 of the Civil Procedure Code or under the Specific Relief Act, 1963, the company submitted.
The company said that the court’s statement in the April 29 order that “reasons for blocking are manifold” is incorrect as Section 69A can be used only for six specific reasons.
Proton said that by issuing a blocking direction against Proton Mail, the court had “taken over” the Centre’s discretion and sidestepped the procedural requirements specified in the 2009 blocking rules.
The company took issue with the April 29 order’s finding that Proton Mail “is likely lead [sic] to threatening of the security of the nation by, generating false alarms or sometimes communication of mails which are derogatory, defamatory, touching upon the integrity of the nation”.
These findings, Proton said, render the Section 69A process “nugatory”. It said that as per law, only the designated officer, the Section 69A blocking committee, and the MeitY secretary can decide if any information violates any of the six Section 69A grounds.
It also said that by not hearing out Proton, the court had bypassed the Section 69A procedures and safeguards. It said that the court’s order “effectively foreclosed” Proton’s right of judicial review granted by the Supreme Court in the Shreya Singhal judgement of 2015.
‘Private company has no right to demand blocking under Section 69A’
Proton argued that M Moser does not have the legal right to request blocking under Section 69A. Moreover, M Moser’s case — that of defamation and obscenity — do not fall within the six reasons for claiming blocking via Section 69A, it said.
Grounds for Section 69A “are grounds in the realm of public law and not for ventilating private grievances”, the company said. Thus, the Centre did not have a legal duty to block the entirety of Proton Mail without one of the six Section 69A reasons first being satisfied.
‘We have not been validly served’
Proton said that it had not been legally issued notice or served in this case, thereby violating principles of natural justice. It said that even until the time of filing this appeal, it had not received the writ petition or the April 29 order in accordance with the High Court of Karnataka Rules, 1959, or as per Swiss law.
The company argued that the high court, in its January 29 order, had permitted M Moser to serve notice to Proton via the external affairs ministry. But Proton said that it had not received any notice from MEA about M. Moser’s writ petition.
Instead, on February 5, an advocate for M Moser Design Associates sent Proton an email about their petition but as per Proton, it did not mention that the company had sought to get Proton Mail blocked in India. The email was not routed via MEA.
Proton has said that this February 5 email does not constitute valid service as per the high court’s rules or the Hague Convention. It said that since the April 29 order relied on this service through private email, the order had not considered the requirements of service as per the court rules and thus should be set aside.
The company also said that before filing its current appeal (on June 26), it had found that it had received a hard copy of M. Moser’s letter along with the writ petition, sent by Indian registered post. It claimed that the court had not been made aware of this hard copy during the course of proceedings.
It submitted said that since “service by registered post is not valid service as per applicable Swiss law” and the package did not come from Karnataka High Court, the company’s internal processes did not recognise the packet as being important.
Factual, legal errors in the April 29 claimed by Proton
Proton claimed that the April 29 order had some factual and legal errors:
Order wrongly records that Proton Mail earlier had a server in India which was removed in 2020. Proton said that this is incorrect as Proton Mail’s servers were never based in India and have only been based in Norway, Switzerland and Germany.
Order relied on 2011 Intermediary Guidelines even though they have been repealed and superseded by IT Rules 2021.
Order wrongly recorded that the state of Tamil Nadu had decided to block Proton Mail after the service was used to issue fake threats. Proton said that state government have no power to issue Section 69A blocking orders. It admitted that the state had initiated Section 69A procedure to get Proton Mail blocked but the order was eventually not issued by MeitY. (Read more about it here.)
Incorrect interpretation of a Delhi High Court decision where the court had directed removal of specific URLs and exactly identical content, not of entire websites or email services. The Delhi HC had relied on illegality established through Section 67 of the IT Act as a woman’s photos were taken from Facebook and Instagram and reposted on pornographic websites. Delhi HC had not used Section 69A or Rule 10 to issue these directions, Proton submitted.
Proton said that comparing the current case with the Centre’s blocking of 59 mobile apps in 2020 was incorrect as those apps were blocked after duly following the Section 69A process.
Correction (10:01 am): Acting Chief Justice had been incorrectly identified as Chief Justice in paragraph 2. Error has been corrected.
“The End”