Pulkit Khare

Disinformation, misinformation, non-information all equally create an uninformed citizenry which would finally make democracy a mobocracy and farce .

Recently the government has initiated steps to curb the proliferation of the spreading of Fake news through social media platforms (hereinafter ‘SMP’). Fake news has been rampantly spread through these SMPs causing distress, panic and furore amongst the public and such irresponsible messages/ news has goaded the crowd to incidents of lynching and mob beatings across the country. Amongst other concerns of mala-fide use of the SMPs is terrorist organisations such as Jaish-e-Mohammad, which use the end to end encryption that secures privacy of conversation between the sender and the receiver without interception.

The Problem

Due to the rapid increase in dissemination of unwanted, false and provocative content through these SMP’s has raised national security and public order concerns in India. The problem regarding such content is the inability to trace and attribute the information so spread to a specific person. Also the inability of the government to intercept and regulate the information in tackling security challenges have prompted the urgency of control over data and information flow.

Measures taken by the Government

Identifying among various SMPs which offer encrypted conversation services, the Government of India had issued directions and notices to the Facebook owned Whatsapp, whose services were being misused to foment unrest in the Nation.

First Notice: The Government’s first notice was a terse note stating that Whatsapp cannot escape from its responsibility for such rampant abuse of its platform and shall find originators of provocative messages.

Second Notice: Government sternly reiterated that absence of adequate checks will be treated as ‘abetment’ of rumor propagation and which will ensue legal consequences.

Current Position

The Government has been unable to take action against these SMPs primarily due to Section 79 of the Information Technology Act, 2000 (Hereinafter referred as ‘IT Act’) which deals with the Exemption of Liability of Intermediaries. Under the IT Act, SMPs are regarded as Intermediaries[2] and so far as they don’t initiate, modify the transmission or select the receiver of transmission and merely provide a service of hosting third party information they wouldn’t be held liable.[3]

In response to the notices sent by the Government, Whatsapp had expressed the need for preventing the misuse of its platform and steps and protection continuously put forth by it during the years of its operation. Whatsapp is currently under the shield of section 79 of the IT Act since it doesn’t intercept the transmission and lets the user control the information. Also, it had indirectly expressed its reservations to not filter or modify the content by interception as was sought by the Government, citing privacy concerns of the individual’s information being shared through their platform which may involve medical consultations, business strategies or private communications with their banks (requiring utmost privacy especially from a private entity).

The Pressure

The stern and terse notices issued by the Government to Whatsapp has been pressurizing it to control the flow of Fake, false and provocative information. The state is indirectly endorsing regulation of private information transmitted through the application by its users. Such exercise would therefore have dual implications, firstly, stripping off the exemption under Section 79 since the transmission will be modifiable and secondly that the Right to privacy of any user will be under threat and will subject SMPs to multiplicity of legal actions in violation of their fundamental right.

What if the SMPs don’t accede to Government’s pressure?

SMPs can continue to enjoy immunity under Section 79 only when they are not complicit or abetting the commission of an unlawful act and also if they adequately and expeditiously take measures to remove data intended for committing unlawful acts notified to it either by the Government or upon receiving knowledge of it.

During the time of issue of first notice by the Government, WhatsApp didn’t wish to comply with the implicit hints of notice issued by the Government towards monitoring the data closely of its users by impinging their privacy. It came out with various measures to curb fake news, it launched the ‘forwarded’ feature to identify if the message was sent by the originator or was merely passed. It released full page advertisements notifying people to be aware of the steps to identify and avoid fake information, it had also promised to release educational material for preventing the proliferation of such content. But the Government found the measures to be inadequate since the instances of lynching and mob beatings remained unabated.

In that regard since Whatsapp had strayed away from regulation of the content of the transmission, another notice was issued posing a direct threat of initiation of legal actions, to hold the intermediary liable as an abettor of rumor propagation which shall serve as an exception to the exemption of the liability of an intermediary under section 79. The government being unable to control the proliferation of such content has therefore taken efforts to hold take away the immunity of the SMPs under the IT Act.

Future Position

In the lurch of finding a solution to the epidemic of such unverified content, the Government has been considering to control the SMPs through various other provisions of the IT Act to an extent of blocking them in emergency situations. Among various sections considered some of the primary sections discussed are:

Section 69 which provides powers to the government for issuing directions for interception or monitoring or decryption of any information through any computer resource in light of it being satisfied on grounds inter alia, public order and security of the state.

Section 69A which empowers Central government to block public access of any information through public resource on grounds inter alia, public order and security of the state.

Section 85 which speaks of liability of a company over committing any offence or contravening any provisions of the Act.

In light of the aforesaid sections, the Government has been considering to put forth responsibility over the intermediaries for decrypting and monitoring the transmissions and failure to do so will resultantly trigger the second notice. Also it has considered to find out measures to block complete access of such SMPs in emergencies and insurgency hit areas as per Section 69A.

Implications

The pressure built up by the Government in light of the issues has raised concerns related to the privacy of the data and the liability of the intermediaries handling it. In light of the recent Supreme court Puttaswamy judgment which confers a right to privacy as one of the fundamental rights, the government of India had expedited its efforts to control the flow of data and the need for protecting the personal data of citizens. The notices so issued and the judgment have led the intermediaries in the cross hair and are walking on a tight rope of violating one or the other. Since regulation of the transmission violates the privacy of an individual and non-regulation of transmission which tends to proliferate fake news will result in initiation of legal actions by the Government.

Conclusion

The Government has been pushing the responsibility of the Law enforcement agencies towards the SMPs, its inability to curb and monitor the misinformation caused by the third party transmission on the intermediary platforms has led to shifting the burden on the SMPs on transmission regulation. The liability fears raised by the inter-ministerial panel of the Government about plans of booking top bosses has led to furthers concerns to the executives and heads of various SMPs in India.

The notices are a colorable attempt to dilute the exemption of Liability of intermediaries, hiding the inability of the Law enforcement agencies to catch and prevent or take action against the participants of Mob lynching attacks. Government’s desperate attempts to find a scapegoat to the issues has been through holding the SMPs liable as abettors instead of developing measures to curb the problem through advancing infrastructure requirements for the Law enforcement agencies. The Government shall reconsider its position on this, lest it shall drive out all the SMPs or make the right to privacy blurry in regards security and sovereignty interests of the States.

The author is a IV year BA LLB(Hons.) student at the National University of Advanced Legal Studies (NUALS), Kochi. 

[1] Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294.

[2] §2(1)(w), Information Technology Act, 2000.

[3] §79(2), Information Technology Act, 2000