The Social Media arena and Social Media Platform Users are now in the phase of being reformed with further regulation on them to be imposed by the Government of India. With all the stake holders like Government, The Service Provider, The Intermediaries, the Supreme Court and the Users (to include Human Right and Privacy Right Activists), having to experience the churning in the ensuing whirlpool; the present phase is truly volatile. Come January 2020, we all will be able to decide the extent of usage of social media, the modalities of usage and whether to totally dump the social media platform.
The Government of India’s Call
The government proposal to amend The Information Technology (IT) rules which would make it mandatory for social media platforms and messaging apps to deploy tools to identify and curb unlawful content as well as follow stricter due diligence practices. This was mooted in the later part of year 2018. It is a known fact that the government will also have the liberty and is also empowered vide Section 69A of the IT Act 2000 to “block any information generated, transmitted, received, stored or hosted in any computer resource under certain conditions, including in the interest of sovereignty and integrity of India, defence of India, security of the state and public order”. Over and above the government also has the right to block Social Media accounts in the country in matters of public interest.
To work out the modalities and also to assist in bringing out the draft rule, the IT ministry officials, in November 2018, held a meeting with senior executives of the prominent Social Media service providers to include: Google, Facebook, WhatsApp, Twitter, etc to discuss the proposed changes in the Information Technology (IT) Rules.
Further, in December 2018, the ministry had published the Draft Rule and sought public feedback. On the start of the winter session of parliament, the matter had again come up as a question from the opposition. In a written reply to the Rajya Sabha on 21 November 2019, the Minister of State for Electronics and IT Sanjay Dhotre said “MeitY received 171 comments and 80 counter comments from individual, civil society, industry associations and organisations. The comments so received have been analysed and the Rules are being finalised”. Some of the Salient points that may be addressed in the Rule are:
The rule will be binding on the Social Media service provider and on the Users
- Due Diligence to be followed by intermediaries include periodically informing the users for compliance of rules and regulations as well as users agreement and privacy policy.
- Platforms will also have to deploy technology-based automated tools or appropriate mechanisms for proactively identifying and removing or disabling public access to unlawful information or content
- Social media platforms will have to bring in traceability of the originator of the information even at the cost of individual privacy.
- Remove malicious content in 24 hours upon receiving a court order or when notified by appropriate government authorities.
- Significant intermediaries with over 50 lakh users will have to set up an office in India and appoint a nodal officer for liaisoning with law enforcement agencies.
How much of data India presently ask from Social Media Service Providers?
In the recent past, there were reports in the media that, India is among the top countries to demand data on regular basis form the Social Media Service Providers. One of the reports mentions that India ranks second in government requests for “Facebook user data”. In January-June 2019, India made 22,684 requests for user data of 33,324 users/accounts from the social media company. This was only behind the US that asked the social media giant for 50,714 user data requests of 82,461 users/accounts in the period.
Who all are presently authorised to intercept Social Media Traffic in India?
The Government vide its notification in December 2018 has already paved the way for monitoring of Communications to include Social Media and has already empowered 10 (ten) agencies to perform the task:
- The Intelligence Bureau
- Narcotics Control Bureau
- Enforcement Directorate
- Central Board of Direct Taxes
- Directorate of Revenue Intelligence
- Central Bureau of Investigation
- National Investigation Agency Cabinet Secretariat (RAW)
- Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only)
- Commissioner of Police, Delhi
It is to be noted here that earlier only data in motion could be intercepted. But now data revived, stored and generated can also be intercepted as powers of seizure is also included. This execution entails, that monitoring can also be done of emails and other electronically transferable data other than voice calls.
The Role of Supreme Court of India in Regulation and Enforcement on Social Media
The role of the Supreme Court in upholding Privacy and Fundamental Rights and at the same time ensuring Security and Safety to the Citizens and to the Nation
The Supreme Court in the Shreya Singhal vs Union of India On 24 March 2015 struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. The Court further held that the Section was not saved by virtue of being a ‘reasonable restriction’ on the freedom of speech under Article 19(2). The Supreme Court also read down Section 79 and Rules under the Section. It held that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority. This case also saw a watershed moment for online free speech in India and has ensured that the LEA has not been allows carrying out arbitrary arrests and subjecting them to unnecessary trails.
The very Supreme Court has also asked the Government to further regulate the Social Media. The Apex Court also in a recent direction has expressed the need to regulate social media to curb fake news, defamation and trolling. It also asked the government to come up with guidelines to prevent misuse of social media while protecting users’ privacy.
It is also to be remembered that the government may be allowed to carry out its analysis on Social Media Control and also bring out laws; but the Supreme Court based on the powers vested on it vide Article 32 and Article 136 of the Constitution of India, can exercise the power of judicial review of any law/rule enacted/notified by the legislation.
The Grand Finale
The present situation is truly volatile, with the Government planning for a stringent Rule to gain its control, the Supreme Court at the helm with the Constitutional Rights and Enforcement on one side, the Users who want Liberty of usage and at the same time Privacy, the citizens wanting a secure environment in the country, the activists fighting for rights, as so on…
The Government is also sensitive to all of the nuances of this sensitive scenario. In a public statement on being questioned on the Social Media Regulation and Control proposal; the government said that it is committed to freedom of speech and expression and privacy of its citizens, which again has to be balanced-out with zero compromise to Safety and Security to its citizens and also for the Nations Security.