Social Media and all ‘intermediaries’ – every entity that helps transmit data or store data online – stand to lose with the new ‘unconstitutional’ social media framework and guidelines, experts say.
Bangalore: M V Rajeev Gowda, a former member of parliament in the Rajya Sabha and a national spokesperson for the Indian National Congress, said that the new social media guidelines are part of the government’s plan to go after free speech and are, most likely, in violation of the parent Information Technology (IT) Act.
The government on Wednesday morning issued updated social media guidelines that state that intermediaries should have a governance structure that includes maintaining a proper record of login IDs, passwords, and email addresses.
Watch what you say or we will
Experts believe that the new guidelines violate basic fundamental rights. “The government doesn’t have the power to pass these rules,” said Pranesh Prakash, former policy director at the Center for Internet and Society, “In my opinion, the guidelines are beyond the powers of the central government and are unconstitutional.” He added that the parliament has the IT Act under which there are some rulemaking powers available to the executive. The government can only make rules to facilitate the working of the apps. Instead, the new rules allow the government to hold an intermediary accountable for a user’s action.
WhatsApp has sued the Indian government for imposing the IT Rules 2021. “Probably the most significant privacy case in India, ever since the Right to Privacy case,” Nikhil Pahwa, the founder of MediaNama, said, affirming that the law violates our fundamental rights.
Prakash explained that the guidelines are Ultra Vires, which means it’s against the parent law and not confirmative with it. The new guidelines get rid of the safe harbour of an intermediary. “That is if one sends out bomb threats on a service provided by me and they are to be prosecuted, then I am too, even though I had no control over it,” he said.
“Without the safe harbour, you can’t have the internet as you know today,” he said, “The safe harbour can be taken away by the implications of the new regulations.” Hence, if people who provide these services were to be prosecuted for what a third party is doing, then they would have incentives to shut down the services to dodge the penalty, he concluded.
Nikhil Pahwa Explains
Whatsapp uses end to end encryption, which means that they neither know what is in their messages or who has sent the messages. The only time they do see the content of the message is when someone marks it as spam. In that case, the user who marked it as spam unencrypted it for Whatsapp to see.
The IT Rules force Whatsapp to change this; the government has asked platforms to identify the originator of a message. When this is for law enforcement purposes and is for only one individual or with a legitimate and legal purpose, this seems reasonable. Even the right to privacy judgment allows for some exceptions to the fundamental right to privacy, namely: proportionality and legitimacy, and backed by law.
For WhatsApp to enable identifying the originator of even one message, it would mean that they have to re-architect the entire platform – potentially compromising all its users.
The court will have to decide if it is proportionate to violate the privacy of everyone to identify one sender of a message.
“Signal’s privacy features are even better than Whatsapp. Whatsapp uses the Signal Protocol for End to End Encryption. These rules impact all social media, including Signal.”
The Dilemma of Self-Censorship
Prakash emphasized the fact that in the media the regulations are only seen as a threat to big social media companies, however, all entities providing services online come under the scanner. The guidelines mention social bookmarking sites like StumbleUpon ; transaction-based platforms like Amazon and eBay; self-publishing media like Youtube, Picasa; Business management, etc.
In 2011, The Centre for Internet & Society in partnership with Google India conducted the Google Policy Fellowship 2011. It stated that intermediaries are recognized as essential cogs in the wheel of exercising the right to freedom of expression on the Internet. With the 2008 amendment of the Information Technology Act 2000, India joined the bandwagon and established a “notice and takedown” regime for limiting intermediary liability.
The report stated that the media has projected that the rules seem to encourage privately administered injunctions to censor free expression. The government responded through press releases and assured that the rules in their current form do not violate the principle of freedom of expression or allow the government to regulate content. However, the study proved otherwise.
“The study showed that intermediaries practised self-censorship when faced with a complaint,” said Pranesh. The general problem, he explained, is that there is self-censorship of legitimate content, however, no one is checking this censorship. “There is no way one can complain about censorship, while we can easily complain about things we don’t like to see,” he said. He added that there was no equal representation for those who believe that there is too much censorship.
He suggested that there needs to be a separate provision of the IT Act, and more detailed guidelines of the complaints that need to be entertained should be in place.