Privacy vs Public safety: New IT Rules
Author: Shefali Chitkara (Vivekananda Institute of Professional Studies)
ABSTRACT
The article talks about the new IT rules [Information Technology (Intermediary Guidelines and Digital Media Ethics Code) rules 2021], notified by the government in February 2021. The rules have been framed in exercise of powers under section 87 of IT Act 2000 and similar provisions which were there before under Information Technology (Intermediary Guidelines) Rules 2011 stand replaced. The article has talked about the two major concepts of ‘Privacy’ and ‘Public Safety’ which are the elements of the controversy brought up by the new IT rules. The author has mentioned the salient features of new IT rules in brief. Further, it talks about the controversy and problems arising from such rules. It also includes the reasons for the need of such rules and government control. The author concluded by specifying few of the observations made by the courts by mentioning some of the earlier cases and giving some suggestions in that regard as well.
INTRODUCTION
The ministry of Electronics and Information Technology of India has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules on February 25, 2021. Social media platforms were given three-month deadline to comply with the IT rules, 2021 which ended on May 25, 2021. On May 26, 2021, government issued a letter to the significant social media intermediaries asking about the status of compliance by those intermediaries.[1]
In lieu of this, WhatsApp filed a suit against the Government in Delhi High Court, contesting Rule 4(2) of IT rules. Other social media platforms like Koo, Share-chat, Telegram, LinkedIn, Facebook have complied with some of the rules under the new IT rules and have also taken a step against few in the court.[2]
The Government has introduced these rules as a means to combat the spread of misinformation through social media platforms and regulate the content on streaming services. It is taken as a step for ‘Public Safety’ to end fake news, child sexual abuse material and radicalization among other social vices. But few social media platforms also recognize it as an end to ‘Privacy’ which is our fundamental right as identified under Justice K.S. Puttaswamy v. Union of India[3]. According to them, it could not only have an impact on free speech and business freedom but also on user privacy and national security.[4]
SALIENT FEATURES OF NEW IT RULES
New IT rules would mean that social media platforms are welcome to do business in India but they have to follow the constitution and laws of India. These rules empower users of social media platforms, embodying a mechanism for redressal and timely resolution of their grievance. The proposed framework has been identified as progressive, liberal and contemporaneous. It tries to address different concerns of people while removing any misapprehension of curbing creativity and freedom of speech and expression.
Why is there a need of such rules?
Many problems including persistent spread of fake news, rampant abuse of social media to share morphed images of women and contents related to revenge porn has compelled many social media platforms to fact-check mechanisms. Use of abusive words, defamatory and obscene contents and disrespect to religious sentiments through platforms are also growing.
The increasing misuse of social media by criminals, anti-national elements like for recruitment of terrorists, circulation of obscene content, financial frauds etc. have increased the challenges for law enforcement agencies.
The users have been left totally dependent on the whims and fancies of the platforms due to the absence of robust complaint mechanism where the ordinary users of social media or OTT platforms can register the complaint and get it redressed within the defined timeframe. The user who has created the profile by spending time, energy and money is left with no remedy in case that profile is removed by the platform without giving opportunity to be heard.
The rules empower the ordinary users of such platforms to seek redressal for their grievances and command accountability in case of violation of their rights. In this regard, two incidents are important:
- In Prajjawala[5] case, the Supreme Court in writ petition order dated December 11, 2018 had observed that the Government may frame necessary guidelines to eliminate child pornography, rape videos and sites in content hosting platforms.
- The Supreme Court in order dated September 24, 2019 had directed the Ministry of Electronics and Information Technology to appraise the timeline for completing the process of notifying new rules.[6]
The New IT rules
It divided the platforms into social media intermediaries and significant social media intermediaries (in which there are more than 50 lakh users). Few rules are common for all the intermediaries like due diligence to be followed by them; must setup Grievance Redressal Mechanism; must ensure online safety and dignity of users, especially women users; must bring Voluntary User Verification Mechanism and must remove unlawful information.
Additional due diligence only for the Significant Social Media Intermediaries is also required. This includes appointing a Chief Compliance Officer, Nodal Contact Person for 24*7 coordination with law enforcement agencies and Resident Grievance Officer. These three should be the residents of India. It must also publish a monthly compliance report and the most controversial point is that the Significant Social Media Intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information when required by the law.[7]
If due diligence is not followed by the intermediary, safe harbor provisions would not be applicable to them. But this absence of protection of Section 79 could also lead to such situation where employees of the platforms may be personally held liable for failing to ensure that their employer complied with those provisions with no fault on their part. Section 79 of the IT act 2000 acts as the safe harbor provision that protects intermediaries such as data service providers and those hosting websites from being made liable for content that users may post.
What does Section 79 of the IT act say?
It reads as “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.” The need for this section occurred after a police case in 2004 when an IIT student posted an obscene video clip for sale on bazee.com. In this case, the then chief executive officer of the website was also arrested along with the student. The Delhi High Court made him liable under Section 85 of the IT act in 2005 but this decision was overruled by the Supreme Court in 2012 and after this the IT act was amended to include Section 79.[8]
Media ethics code of digital media and OTT platforms
The code of ethics for online news, OTT platforms and digital media called for self-classification of content as U (universal), U/A 7+, U/A 13+, U/A 16+ and A (adult). They need to implement parental locks for those content which are classified as U/A 13+ or higher and reliable age verification mechanisms for content which are classified as A. publishers of news on such platforms would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Program Code under the Cable Television Networks Regulation Act.[9]
A three-level grievance redressal mechanism has been established under sub-rule (3) of Rule 8 in which:
Level I- Self-regulation by the publishers;
Level II- Self-regulation by self-regulating bodies of the publishers;
Level III- Oversight mechanism.
WHAT’S THE CONTROVERSY ALL ABOUT?
One problem is the flawed consultations by the authority. Ministry of Technology and Information Technology prepared draft rules and invited public comments on December 24, 2018. They received 171 comments from individuals, civil society and industry associations. The problem is with this number 171 which is very less. Though 80 counter comments were also received but still it’s nothing when there are crores of users.
The major point of controversy is whether these rules violate user privacy and free expression online? WhatsApp that is owned by Facebook has also taken government to court contending that the new rules violate the right to privacy of Indians and called for intermediary rules to be declared as unconstitutional. According to them, it violates fundamental right to privacy without satisfying three-part test put forth by Supreme Court of legality, necessity and proportionality. Further, they contended that it also violates fundamental right to freedom of speech and expression, to identify the first originator of the information is ultra vires its parent provision (section 79 of the Information Technology Act, 2000).[10] They also said that it undermines privacy by ‘traceability’ and breaking of encryption clause. The advocates of traceability have said that it is the only way to fight ‘fake news’ and track down the originator of illegal content. However, experts have also argued that these attempts are of less effectiveness and there are several other hacks that could be implemented to get around any such tracking.[11]
The rules says that any platform is free to enter India but it should accept all the conditions which the country propose. The government wants them to identify originator with the help of their Artificial Intelligence which is a technology-based identification.
Another controversial point is the oversight mechanism of Information and Broadcasting Ministry. This has been questioned by many as the involvement and regulation by the ministry is increased a lot. Does this mean government oversight and more censorship?
So, these are few of the problematic or controversial areas in these new rules.
PRIVACY vs NEED FOR GOVERNMENT CONTROL
In a democracy like ours, we have given this right to the government to protect our privacy and also to ensure public safety. It is very much important for a country to ensure both these things to its citizens. Government control in a country is also a necessity to keep all things at equal footing but that should not result in dictatorship.
In the current situation, with the growing frauds and increasing anti-national elements, there is definitely a need of government control but only up to a certain level. It should not go beyond what people of India desires for i.e., it should not be at the cost of privacy of the people. Ultimately, true public safety would be achieved only when there is a collaboration between law enforcement and community.
Though Indian platform, Koo has already complied with the new rules but other companies that have headquarters in USA have asked for more time to take a decision. Facebook has also confirmed that it aims to comply with the new rules.[12]
OBSERVATION BY COURTS
As the term ‘Privacy’ is concerned, there is a famous case of Justice K.S. Puttaswamy v. Union of India[13]. On August 24, 2017 a 9-judges bench of Supreme Court gave a unanimous judgement affirming that the Constitution of India guarantees a fundamental right to privacy to each individual. In this case, the court has made the following observations which are mentioned below:
- Human beings have inherent right to privacy and this right qualifies as an inalienable natural right. The ability of making choices is at the core of human beings.
- Privacy constitutes an irreducible condition necessary for the exercise of personal liberty and freedoms that are guaranteed by the constitution.
- Court held that privacy is a part of liberty under Article 21 and a constitutionally protected right. Articles such as 19(1), 20(3), 25, 28 and 29 are all made meaningful by the exercise of privacy.
Relying on this judgement, WhatsApp filed a suit contesting mainly Rule 4(2) of the IT Rules, 2021. However, can we actually say that the rule of giving the information of the first originator by the social media platforms is a violation of our right to privacy? Let us look at the judgements of the courts in this regard.
In the case of Govind v. State of M.P.[14], the 3-judges bench of Supreme Court laid down that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the court finds out that the acclaimed right is entitled to protection as a fundamental right to privacy, then a law infringing it must satisfy the compelling state interest test.
In another case of Rajagopalan v. State of Tamil Nadu[15], court observed that an individual has a right to protect his privacy and no one has the right to publish anything related to the other person without his consent regardless of the fact that whether it is true or false, critical or laudatory, unless that information is a part of the public records.
Further, in 2018, Supreme Court had observed that the government may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries etc. in content hosting platforms and other platforms as well.
In 2020, a report was laid down by an Ad-hoc committee of Rajya Sabha after studying the alarming issue of pornography on such platforms and its effect on children and society as a whole and recommended for enabling the identification of originator of such contents. The government has also brought all OTT platforms under the ambit of Ministry of Information and Broadcasting.
Google has also sought interim relief against its search engine being which is being classified as ‘significant social media intermediary’. Google told the court that it is not a social media intermediary but merely an aggregator. Though there is no judgement in this regard till now.[16]
SUGGESTIONS AND CONCLUSION
There would absolutely be no change in the way you regularly interact with any social media platform, as long as you aren’t breaking any rule as well as the community guidelines, with posts that are offensive or dangerous and this was stated to be very much within the strong action, legal or otherwise. If in case you raise an issue with the grievance redressal systems of any of these platforms, the resolution will now have to be quicker and they will need to be more responsive. India is a huge market for all these social media platforms and it is now to be seen how the entities are going to proceed, especially after WhatsApp suit against the Government.
India, being no longer a consumer but a producer of original high-quality content which provides employment as well as entertainment to audience internally and globally, competes actively with other countries, needs an environment that recognizes it and such regulations could harm this sector, as pointed out by many experts.
Privacy and public security both should be taken into account by the government and different platforms and nothing should be compromised upon by the citizens of the country. There is a need for the uniform law that would be compatible with the international privacy laws as the flow of data has become trans-national due to globalization. There is also a need for everyone including government and platforms to have more clarity on the rules and together go ahead with it instead of guessing and playing on such rules.
“Earn good money, do good business, but you will have to learn to respect the laws of India. India will not compromise its digital sovereignty,” Union Minister, Ravi Shankar Prasad said.
REFERENCES
- https://www.theippress.com/2021/04/13/masterstroke-by-the-government-of-india-to-protect-the-rights-of-users-in-digital-media/.
- https://www.freepressjournal.in/india/fpj-explains-what-are-the-centres-new-rules-for-digital-content-and-when-will-they-come-into-effect.
[1] “An Update on India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”, available at: http://blog.galalaw.com/post/102gzas/an-update-on-indias-information-technology-intermediary-guidelines-and-digital?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration.
[2] “New IT rules: 7 social media platforms comply with some guidelines; Twitter drags feet”, available at: https://www.dnaindia.com/india/report-new-it-rules-7-social-media-platforms-comply-with-some-guidelines-twitter-drags-feet-2892399.
[3] (2017) 10 SCC 1.
[4] “An Update on India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”, available at: http://blog.galalaw.com/post/102gzas/an-update-on-indias-information-technology-intermediary-guidelines-and-digital?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration.
[5] Vide order dated 11/12/2018.
[6] “Masterstroke by the government of India to protect the rights of users in digital media”, available at: https://www.theippress.com/2021/04/13/masterstroke-by-the-government-of-india-to-protect-the-rights-of-users-in-digital-media/.
[7] “FPJ Explains: What are the Centre’s new rules for social media and digital content?”, available at: https://www.freepressjournal.in/india/fpj-explains-what-are-the-centres-new-rules-for-digital-content-and-when-will-they-come-into-effect.
[8] “Explained: Social media and safe harbour”, available at: https://indianexpress.com/article/explained/intermediary-guidelines-digital-media-ethics-code-facebook-twitter-instagram-7331820/.
[9] “FPJ Explains: What are the Centre’s new rules for social media and digital content?”, available at: https://www.freepressjournal.in/india/fpj-explains-what-are-the-centres-new-rules-for-digital-content-and-when-will-they-come-into-effect.
[10] “ETtech Explained: Government rules on WhatsApp & the controversy around it”, available at: https://m.economictimes.com/tech/trendspotting/explained-government-rules-on-whatsapp-the-controversy-around-it/amp_articleshow/83035150.cms.
[11] “From social to antisocial: How the new IT rules will accelerate India’s democratic decline”, available at: https://www.newslaundry.com/2021/05/29/from-social-to-antisocial-how-the-new-it-rules-will-accelerate-indias-democratic-decline.
[12] “FPJ Explains: What are the Centre’s new rules for social media and digital content?”, available at: https://www.freepressjournal.in/india/fpj-explains-what-are-the-centres-new-rules-for-digital-content-and-when-will-they-come-into-effect.
[13] (2017) 10 SCC 1.
[14] 1975 SCR (3) 946.
[15] 1994 SCC (6) 632.
[16] “Google says India’s new IT rules not applicable to its search engine”, available at: https://m.economictimes.com/tech/technology/google-claims-new-india-it-rules-not-applicable-to-its-search-engine/articleshow/83166566.cms.
