Draft rules to curb “unlawful content” on social media
- December 26, 2018, 3:44 pm
The draft rules proposed by the government to curb “unlawful content” on social media that make it mandatory for intermediaries to trace the “originator” of such content have drawn strong criticism from the Opposition. The latter contend that the state is expanding the scope for surveillance of citizens.
WHAT IS INFORMATION TECHNOLOGY AMENDMENT RULES 2018?
It is the government’s proposed amendments to rules under Section 79 of the IT Act make it mandatory for online platforms to “proactively” deploy technology to enable access to content seen as “unlawful”.
PROPOSED NEW RULES:
The changes will require online platforms to break end-to-end encryption in order to ascertain the origin of messages. The social media platforms to “deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying or removing or disabling access to unlawful information or content”.
As per the amendment, the social media platforms will need to comply with the central government “within 72 hours” of a query.
There should be a ‘Nodal person of Contact for 24X7 coordination with law enforcement agencies and officers to ensure compliance. The social media platforms will be keeping a vigil on “unlawful activity” for a period of “180 days”.
NECESSITY FOR THE AMENDMENT
In a judgment in the Tehseen S. Poonawalla case, the court gave the government a virtual carte blanche to stop/curb dissemination of “irresponsible and explosive messages on various social media platforms, which have a tendency to incite mob violence and lynching of any kind.”
RIGHT TO FREE SPEECH AND PUBLIC ORDER
The proposed changes have once again given rise to a debate on whether the government is intruding into the privacy of individuals, evoking sharp response from opposition parties.
Section 79 of the IT Act provides immunity to intermediaries (for example, websites like Facebook) for any illegal content posted by third parties. Under this section and the Information Technology (Intermediaries Guidelines) 2011, if an intermediary receives ‘actual knowledge’ of any illegal content posted on it, it is obligated to remove such content within 36 hours. On failing to do so, the intermediary will lose its immunity from being sued. Illegal content under this section is much broader than that under Section 69A. It can include, for example, content that is offensive, obscene or defamatory.
Under Section 69, the government can intercept personal information under any of the following conditions: when it is necessary in the interest of Indian sovereignty or integrity; security of the state; friendly relations with foreign states; public order; and for preventing incitement to the commission of any cognisable offence related to these. While the first four feature in Article 19(2) of the Constitution, the last, namely preventing incitement to commission of cognisable offences, is not an enumerated restriction. A restriction in the form of authorised surveillance would not be justified unless it is in order to maintain public order, a reasonable restriction under Article 19(2).
Section 69 of the IT Act is so broadly worded that it could enable mass surveillance to achieve relatively far less serious aims such as preventing the incitement of the commission of a cognisable offence. Such surveillance could be justified to achieve relatively far less serious objectives such as a Facebook post expressing dissent against government policy which, in the state’s opinion, is offensive. The state, through the powers under Section 69, can therefore justify authorising surveillance, purporting this to be a grave concern. The language of Section 69, therefore, speaks abundantly of doublespeak, allowing for disproportionate state action, antithetical to the right to privacy.
However, Section 69, as mentioned earlier, allows mass surveillance even when only law and order is affected while public order prevails: merely for precluding the incitement of the commission of an offence.
Such a broadly worded provision can have potential ramifications on free speech. This is because a constant sense of being watched can create a chilling effect on online communication, crippling dissent. Surveillance does not show direct discernible harms as such but rather imposes an oppressive psychological conformism that threatens the very existence of individual freedom. The Supreme Court reiterated this view in K.S. Puttaswamy.
Section 69, therefore, cannot be regarded as a reasonable restriction on free speech as well. Therefore, a simple law and order requirement is an impermissible restriction to free speech unless public order, a much higher threshold, is threatened.
Section 69 also falls short of meeting with the principles of natural justice by failing to accommodate pre-decisional hearings. The Section only makes post-decisional hearings before a review committee possible as a part of its procedure, compelling people to give up their personal information without being given an opportunity to be heard.
The draft notification issued rests on shaky foundations. While the Supreme Court missed the opportunity to examine the constitutionality of Section 69 of the IT Act, looking at the IT Rules to legitimise the notification seems to put the cart before the horse.However The government, clarifies that it is committed to freedom of speech and expression and privacy of its citizens as enshrined in the Constitution” and “does not regulate content appearing on social network platform” and it must be on its stand firmly and must balance between upholding the public order at the same time giving space for the privacy and the freedom of speech of the individual.