Time to deactivate and move on to more compliant pastures?

As we dive deeper into the worlds inside our screens, there appear undercurrents of trouble in the technological paradise. Recent developments have cast aspersions on the future of how social media will be regulated as jurisdictions look to tighten their laws pertaining to user privacy, data collection and online communications.

On 7th July 2021, Donald Trump filed class-action lawsuits in the Federal District Court, Miami against Facebook, Twitter, and Google for ‘unconstitutional censorship’, citing violation of his First Amendment rights post the January 6 attack on the US Capitol, over concerns that he might incite further violence.

The case revolves around Section 230 of the Communications Decency Act,  1996 (Title V of the Telecommunications Act of 1996 ) which states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Legal experts were quick to dissect the arguments, maintaining that firstly, Section 230 protects the companies from liability by recognising them as ‘platforms’ and not ‘publishers’ and secondly, being privately held, these companies cannot be rendered as state actors and thus the First Amendment argument will not pass muster. Either way, we will all have to wait and watch.

Closer home, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter “the Rules”) were notified which aim at regulating content on social media platforms by increasing accountability from intermediaries and companies by appointing nodal grievance officers, removing content swiftly and then some. These were framed under Section 87 of the Information Technology Act, 2000 (hereinafter “the Act”) which empowers the Union Government to make subsidiary rules without Parliamentary assent.

Twitter

Section 79 of the  IT Act states, “An intermediary shall not be liable for any third-party information, data, or communication link made available or hosted on the platform” what is referred to as the ‘safe-harbour status’.

Twitter lost its liability protection against user-generated content in India over non-compliance with the Rules, after weeks of being at loggerheads with the government. The Ministry of Electronics and Information Technology, (hereinafter “MeITY”) specified the same in an affidavit responding to a case filed by a user’s at the Delhi High Court.

Apart from non-compliance with the Rules, FIRs in several matters including the Ghaziabad Loni fake video and a complaint against child pornography content on the platform have been registered against Twitter in different courts.

Like his predecessor, newly sworn-in Information and Technology Minister Ashwini Vaishnaw  made it crystal clear that “All those who live and work in India will have to abide by the rules of the country.” This was also reflected in the proceedings before the Delhi High Court pertaining to the non-appointment of the Grievance Officer.

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Facebook

No stranger to controversy, Facebook has been instrumental in providing ‘safe spaces’ for the exchange of ideas sans censorship. However, untrammeled freedom without any bounds becomes a breeding ground for misinformation, radical ideologies, and sinister conspiracies.

The Supreme Court on 08th July 2021 dismissed a plea by Facebook India’s representative challenging the summons issued by the Delhi Assembly’s Peace and Harmony Committee to appear before it as a witness in relation to the riots. It observed that “digital platforms like Facebook have become power centres with the ability to influence opinions. They must be accountable, the court said, adding it is difficult to accept the ‘simplistic approach’ adopted by Facebook that it is merely a platform posting third party information and has no role in generating, controlling, or modulating that matter”.

The Northeast Delhi riots had witnessed unspeakable horrors and left many casualties. The Court in its 188-page order reiterated that such an event cannot be allowed to repeat adding that “Facebook today has influence over 1/3rd population of this planet! In India, Facebook claims to be the most popular social media with 270 million registered users. The width of such access cannot be without responsibility as these platforms have become power centres themselves, having the ability to influence vast sections of opinions”.

Truecaller

The Bombay High Court on 07th July 2021 issued notice on a public interest litigation petition to the Centre, State governments, National Payment Corporation of India (“NPCI”), and ICICI Bank against the mobile application Truecaller for allegedly accessing contact details and personal sensitive financial data like the bank account details or credit/debit card details of users and auto-registering them on Unified Payments Interface (“UPI”) linking their bank accounts.

The Petitioners further explained that Truecaller obtained ‘consent and collected information including geo-location, IP address, device ID, browsing history and third-party data’ through their skewed privacy policy.

The petition expressed the urgency to immediately take action against these alleged violations which not only threaten national security but go to the very heart of the Constitution, i.e., the fundamental rights of the users.

WhatsApp

WhatsApp had filed a lawsuit in May against the Rules focusing on the aspects of ‘traceability’ and ‘first originator of messages’. It further argued that the Rules failed the tests of legality, necessity and proportionality laid down by the apex court in the Justice K S Puttuswamy Judgement.

MeITY had previously conveyed to WhatsApp that its privacy policy is against the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), Rules, 2011.

However in a separate proceeding against the Competition Commission of India (“CCI”), WhatsApp on 09th July 2021 informed the Delhi High Court that it had decided to put on hold its contentious privacy policy update until the Personal Data Protection Bill, 2019 becomes operative.

Thus, bearing all of these in mind, the rancour between the government and the tech firms is plain to see. Granted, the Rules provide a much-needed oversight mechanism, accountability, and transparency. Even so, these objectives cannot be fulfilled by overriding the freedoms of speech and privacy of the citizens. Any unlawful curtailment of rights, specifically without legislative support or consultation with all affected stakeholders will not be in anyone’s best interests.

By Nishtha Chaturvedi

Editor

Indian Society for Legal Research

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