Barbara, a satirical street artist from Germany says, “The freedom on the internet is in danger if the satirists are exposed to the verdict of private companies that act as a judge”, after several of her pictures were removed by Facebook invoking the newly constituted law in the country, the ‘Network Enforcement Act’. The law requires social networks to block or remove “manifestly unlawful” content within 24 hours of receiving a complaint, failing to do so may attract a whopping fine of up to 50 million euro to the company for failing to establish a compliance system.
The ever-increasing connectivity and perpetual omnipresence of data have posed an insurmountable challenge in keeping the track of unlawful activities by the state authorities. In the wake of fake news hampering the election results and inciting violence among a myriad of other challenges, countries around the world have initiated the due legal processes to curb the free hand of media giants by making them accountable for the fake and hateful content on their portals.
Following the precedence set by Germany several countries including Singapore, Russia, Egypt, Philippines, Venezuela and Kenya have taken necessary measures to shackle the menace of fake news.
Amidst rising tension and hatred fanned by fake social media circulations, India too has come up with the ‘The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018’. 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 changes will require online platforms to break end-to-end encryption in order to ascertain the origin of messages. The social media platforms shall also be liable 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”.
Problems with the bill
Definition of the unlawful act- Rule 3(8) makes a reference to unlawful act according to Article 19(2) of the Constitution of India, which includes interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality etc. Any such unlawful act shall be removed immediately and no later than 24 hours.
This provision is vague and authorizes the state with an un-proportionate power to curb the digital space. Terms like decency, morality and defamation which are included within the definitions’ ambit can perpetually eliminate every kind of the information (read dissent) that goes against the state’s wish.
End-to-End Encryption- Rule 3(5) states that the intermediary shall enable tracing out of such originator of information on its platform as may be required by government agencies that are legally authorized. This essentially means platforms like WhatsApp and telegram will have to break the encryption in order to ascertain the origin of messages. This poses a classic tradeoff between privacy and security, and the state is doing what it does best by tilting the balance towards the latter.
Cornering the media platforms to break the encryption should be judged in the backdrop of K.S. Puttaswamy v. Union of India (‘the right to privacy case’) which clearly stated that any infringement on the right to privacy should be met by the following test to limit the discretion of state-
(i) The extent of such interference must be proportionate to the need for such interference;
(ii) There must be procedural guarantees against abuse of such interference.
Rule 3(5) is neither proportionate nor does it provide any remedy or judicial recourse to the aggrieved party in case of unlawful interference.
The drafting of the rules reeks with fundamental misappropriations and misses various crucial facets of internet regulation and freedom. Member of Parliament, Arunachal East, Mr Ninong Ering’s private member bill titled ‘Social Media Accountability Bill’ which is due for introduction on 8th February 2019 presents an unfailing alternative which has covered various other peculiarities keeping the privacy-security balance intact.
Transparency– The draft bill states that providers of social networks which receive more than five thousand complaints per the calendar year about unlawful content are obliged to produce half-yearly reports on their platforms. The report delves into the time frame, mechanism and other vital information stipulating the way such complaints were handled to ensure the procedural legitimacy of the exercise.
Accountability and Regulatory Fines– In case of negligence, a media service provider is held liable for a payment of ten lakh rupees and fair compensation to the person affected by such negligence as prescribed by the authority. Any willful non-compliance by the providers involves short term imprisonment as well.
Network Enforcement Authority– Keeping in view the limitation and expertise of the government agencies, the stated bill calls for the establishment of a separate, independent authority which will have the same powers as are vested in a civil court to adjudicate and carry forward the duties and responsibilities as are detailed in the bill.
Executive Overreach– ‘Network Enforcement Authority’ is given the whole sole right to maintain the accountability of social media, justifying the principles of fairness, proportionality and necessity. The expert authority will ensure that the Government maliciously does not resort to unfair means to curb internet freedom and expression.
One must not forget the caveats which are necessary to keep the provisions of this legislation fair and just. The executive must not evade the judicial scrutiny; it should be ensured that the decisions regarding freedom of speech are not completely outsourced to the private corporations, independence of the authority shall under no grounds be compromised.
The government’s defence to such ill-drafted, ill-sighted and flawed policy document has always been on the grounds of national security and the broad ideas of sovereignty; decency and morality against which it expects the citizens to surrender their privacy and dignity. However, it is the job of the active citizenry and civil society to incessantly remind the state of its limitations.
Sardar Hukam Singh, who served in first three Lok Sabhas, had refused to sign the draft of the constitution. He gave a powerful dissent against the exceptions and reservations that had made Right to Freedom in article 19 ineffective-
“We have imposed prohibitions on the Legislature, thus conceding that there is danger from that side, and then proceeded to permit the legislature itself to restrict the liberty. The feared robber is made the judge and the possible trespasser the sole arbiter. This is a clear deception.”
The onus is on us to scrutinize that trespassing and arbitration do not remain in the same hands.
About the author: Abhishek Ranjan is a Policy Analyst and Prakhar Singh is a Legislative Researcher.
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