Privacy unlimited? Judicial review can benefit largest stakeholder - the people

WhatsApp has sued the government, much to the consternation of not just our prickly ministers, but of a large segment of public opinion allergic to multinational companies’ disdain for the sovereignty of nations other than their own respective home countries. However, WhatsApp’s challenge of the Intermediary Guidelines should be viewed as a constructive move.

The Information Technology (Intermediary Guidelines and Media Ethics Code) Rules 2021 oblige ‘significant social media intermediaries,’ meaning social media platforms with 50 lakh or more registered users, to not just have a grievance redress mechanism, but to appoint resident compliance officers and points people to liaise with law-enforcement agencies.

These rules also oblige messaging platforms to be able to locate the originator of a message, in case law enforcement requires it. WhatsApp has challenged the rules on the ground that this would mean violating the right to privacy of the sender while this is guaranteed by the Constitution, as clarified by the Supreme Court in its privacy judgment of 2017.

Going to court is a sound move from the company’s perspective. Facebook, which owns WhatsApp, is committed to following the laws of the land — in the European Union, privacy terms are more stringent than in the US, as America lacks any equivalent of the EU’s General Data Protection regulation — as well as to freedom of expression and privacy. To comply with the new rules without a fight would send out a message of insufficient commitment to free speech and privacy.

Also read: What next in the tussle between government and social media firms?

A law suit that sets in motion a judicial review will test the essential constitutionality of the new IT rules and its outcome would be a defensible plank for compliance without attracting much adverse comment from a domestic audience eager to pounce on any transgress by the company. The judicial review would benefit the largest stakeholders in the dispute, the people of India.

Multiple issues

One is the obligation of companies that operate in India to obey the law of the land. On this, there can be no dispute. However, some laws might be in violation of the Constitution and, therefore, not fit to be the law. Unless a judicial review tests the constitutionality of a law or the rules framed by the government to enforce the law (which is what the intermediary guidelines are), the constitutionality of a law would depend on subjective opinions. Once a law has been found constitutional, individuals and companies have to comply.

Second is the specific nature of the technology platform that serves as social media intermediary. Here there are two subsets of features. One is the speed and reach of these platforms and the permanence of what they carry, since someone could copy a message or image and retransmit it, even if the originator of the message or image has deleted or disowned it.

Another is the functionality of the platform making what one user posts on it as visible to other users, and the accountability that derives from this functionality for the impact it has, whether for truth and the public good or otherwise, or for the reputation of individuals.

Also read: Know why WhatsApp’s new privacy policy should worry you

Social media messages are instantaneous. A daily newspaper comes out once a day, something that happens today would be reported in tomorrow’s newspaper. A television channel can report a development in real time, provided the reporter is handily around when it happens. Since, on social media, anyone can double up as a reporter or commentator, fact and opinion get carried instantaneously, reaching millions. However, there is no guarantee that what is posted is either authentic or decent.

Section 230 of US Code

The Internet was designed originally for decent people as developers and users. Hence its lack of intrinsic protection against viruses and other malware, and Section 230 of the US Code, which gives immunity to interactive computer services for content provided by a third party. One subsection of the section says that no user or provider of interactive computer services would be considered a publisher when they carry content by a third party. Another subsection gives a provider Good Samaritan protection against charges of violating the right to free speech, if it were to block content it deems harmful.

Section 230 has allowed internet services to grow and flourish, without being sued to death in their infancy. While it continues to colour the worldview of online services, their roles and capabilities have evolved significantly from 1996, when President Bill Clinton signed Section 230 into law.

Editorial judgment

Today’s social media platforms can no longer claim to be agnostic displayers of user-generated content who do not exercise editorial judgment. They apply two kinds of editorial calls. One, they sort content by subject and feed particular types and streams of content to particular sets of users, to make them stay on the platform longer. Two, they increasingly moderate content, applying their own standards to determine if a particular post should be blocked or not — or tagged ‘manipulated media’.

Mainstream media, print and television have to take responsibility for what they carry. If they exhibit prejudice, incite violence or slander people, they are liable to be prosecuted as publishers. It is time to treat social media as publishers, with responsibilities similar to those imposed on mainstream media. This would no more restrict freedom of expression than mainstream media’s accountability for what they publish strips them of media freedom.

Also read: WhatsApp vs Centre: Five other nations are also trying to enact similar law

If social media platforms carry slanderous, hateful or distorted material, they should take it down, once alerted. If social media platforms are used to assemble a mob and attack a community, the platforms must cooperate with law enforcement to identify the instigators of the crime. The grievance redress mechanism, resident compliance officer and a functionary responsible for liaising with law enforcement demanded by the Guidelines are entirely appropriate and the social media platforms have no business refusing to comply.

The intermediary guidelines fall short, in that these do not recognize social media as publishers and, thus, fail to impose the same responsibilities on them as are expected from mainstream media. This obliges them to apply their own standards for disqualifying posts or labeling them as suspect. It is far better for the government to recognize them as publishers and give them a set of norms to abide by.

Indian sensibilities

What YouTube or Facebook deems appropriate in the US — such as a video of half-witted Christian fundamentalist pastor burning a copy of the Quran, to the applause of fellow halfwits — might incite violence in India, Pakistan and Afghanistan. Of course, reacting to videos on social media with violence is witless and unlawful and should be checked. But material such as depictions of people deriving pleasure from tearing up or burning copies of the Gita, the Guru Granth Sahib, the Quran or the Bible are puerile misuse of freedom of expression and best avoided. American social media platforms’ native sensibility might let them pass, but that is not suited for India. In India, they must show respect for Indian sensibilities.

What about the threat to privacy deriving from the demand for traceability of messages on WhatsApp? There is every reason to demand traceability. Privacy is a right, but not an absolute right. If the police get word of a terror plot, is the right to privacy of the terrorists who sent out messages to coordinate their action more important than the right to life of innocent would-be victims of their actions? Just as a search warrant will empower the police to enter a private home and search the premises, when warranted, a warrant to trace the origins of a message would and should be valid.

What of the objection that traceability would shatter the encryption that shrouds messages? This might be the case with the present technology that is used for messaging. It should be possible to tag messages uniquely and trace their locus as they go walkabout on the Internet without peering into their content. If the social media platforms require a reasonable period of time to re-engineer their messaging, they should be given the time and encouraged to do the job in India, using India’s plentiful tech talent.

Opacity in govt demands

Breach of privacy is not the problem with the Intermediary guidelines. All text messages on mobile phones are stored for 180 days or so on the service providers’ servers, before they are deleted. This does not strip them of privacy. If there is legitimate reason for law enforcement to read any message or any set of them, only then does privacy become a casualty.

The problem is the opacity and arbitrariness of government demands on social media, whether to delete posts or unblock or remove labels from posts. Demands placed by state functionaries could be politically motivated and to quell criticism. The problem is that there is no mechanism that mandates the government to make public its demands on social media for any action, nor is there any way to hold the state accountable for such demands and the action that followed. This is a prescription for arbitrariness and partisan misuse of state power.

Every demand made to a social media platform must mandatorily be made public and open to public scrutiny. The rationale for it and the follow-up action taken must be explained to a committee of the legislature and this committee’s work must be accessible by the public. The absence of such a mechanism of accountability makes the Intermediary Guidelines an authoritarian tool of censorship. Grandiloquent rhetoric of India being the world’s largest democracy will not change this one bit.

The media ethics code part of the Guidelines is pure censorship and should be junked forthwith. There are norms for the media recognized as publishers, and all news media should follow those norms, and that is all. The government-appointed ‘self-regulatory mechanism’ and an oversight body comprising babus loyal to the political executive that has powers to override the self-regulatory organization are straight out of George Orwell’s dystopia of authoritarianism.

It is welcome that these are being brought to judicial review.

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)