WhatsApp has taken the Central Government to court over the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, that the messaging platform says is in violation of the privacy of its users.
The Facebook-owned messaging platform has said that the traceability clause in the new IT rules violates privacy and is against the fundamental right to freedom. The rule requires social media companies to identify the 'first originator of information,' when authorities demand it.
While arguing that the provision is unconstitutional, the complaint invokes a 2017 Justice KS Puttaswamy vs Union of India case where the Supreme Court held that the fundamental right to privacy is guaranteed under the Constitution of India.
Meanwhile, the Indian government has clarified that it respects the privacy of users and the measures proposed will not affect the functioning of the app in India.
What the Rules entail
The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, cover all significant social media platforms with more than 50 lakh users and digital media platforms including news sites and streaming platforms.
Twitter’s Indian rival, Koo, which has 60 lakh users, is the only platform that has complied with the Rules so far. Facebook (41 crore subscribers) and Google have said that they will comply with the new rules. At least five industry bodies, including the Confederation of Indian Industries (CII), the Federation of Indian Chambers of Commerce & Industry (FICCI) and the US-India Strategic Partnership Forum (USISPF) have sought an extension of between 6 and 12 months.
The IT rules had been framed amidst growing concerns around the lack of transparency and accountability of users related to digital media.
The key points of the new IT Act include:
The new IT rules require social media companies to remove any flagged content within 36 hours.
The rules also require social media platforms to act on any concerns related to the dignity of users, including showing nudity, pornographic material, impersonation, etc, within 24 hours after a complaint is made.
Under its grievances redressal system, social media companies would need to appoint three officers, based out of India, who would handle grievances: (i) Chief Compliance Officer responsible for ensuring compliance with the Act, (ii) nodal contact officer for 24x7 coordination with law enforcement agencies and officers to ensure compliance to orders and (iii) Resident Grievance Officer, who would be responsible for these functions.
To ensure adherence to the Code of Ethics, publishers also need to set up a three-tier structure that includes:
1) Self-regulation by publishers
2) Self-regulation by setting up one or more self-regulatory bodies of publishers. Such a body will be headed by a retired Judge of the Supreme Court or High Court or independent eminent person from media, broadcasting, entertainment, child rights, human rights or other relevant fields.
3) Oversight mechanism for self-regulation by the Central Government. Such a mechanism will have representatives from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, and other such Ministries and organisations.
OTTs will have to self-govern and classify content based on age appropriateness. Films would need to be classified under five age-based categories — U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
OTTs would need to prominently display age classification of a specific program along with content describing viewers of the nature of the content. OTTs would also be required to set up parental locks for content classified as U/A 13+ and above.
OTTs need to take into account India’s multi-ethnic and multi-religious background and ‘exercise due caution and discretion' while featuring religious or racial practices, or views.
Social media platforms, OTT platforms and digital media companies will have to file monthly compliance reports, providing details of grievances received and action taken.
What is WhatsApp’s contention?
WhatsApp is concerned that traceability provision could break the end-to-end encryption the messaging platform currently has, which ensures that no one, apart from the sender and receiver, can read a message, including WhatsApp.
In its blog post, WhatsApp has said that traceability would require companies to hand over the names of people who have shared something, even if they are not the creator, may have shared it out of concern or to check its accuracy.
This could lead to innocent people being targeted, caught up in investigations or even landing up in jail. This, according to the messaging platform, would violate universally recognised principles of free expression and human rights.
The post further states that such a move goes against the principles of how law enforcement and investigations work. While in a regular law enforcement request, the government requests technology companies provide account information about a known individual’s account. “With traceability, a government would provide a technology company a piece of content and ask who sent it first,” the blog post states.
Critics of the move say that the IT Act could prove detrimental to freedom of speech and democracy. The new IT rules face at least six legal challenges across three high courts in the country. Digital-rights non-profit, Internet Freedom Foundation, has said that the guidelines pose a tremendous challenge to artistic expression and diversity, and lead to government-mandated censorship.
The Foundation for Independent Journalism, the trust which publishes The Wire, has also filed a petition challenging the IT Rules. The Delhi High Court has issued a notice to the Centre on the petition pleading that the new rules go beyond the scope of what is permissible under the IT Act.
While the government has not explicitly said that social media platforms that do not comply with the new rules will be banned, it has said that it will take away any protection the platforms have under the IT Act.
Under sub-section 1 of section 79 of the IT Act, ‘an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.’ Hence, this legal immunity will be taken away if a particular IT company does not comply.
This would then make operating in the country difficult for digital companies, in an increasingly tension-filled environment.
On its part, while maintaining that user privacy will not be affected, the Indian government has stated that "no Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions."
It has said that the requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction."