New Social Media Rules by 15 January 2020, Says Govt to SC

The Centre is seeking to enforce traceability of messages by compelling WhatsApp to break end-to-end encryption.

Image used for representational purposes. 

(Photo: Kamran Akhter/The Quint)

Following a request by the Centre, the Supreme Court on Tuesday, 22 October, granted the Union Government three months’ time to frame new rules to regulate the misuse of social media.

These will be part of the new intermediary guidelines – rules dealing with regulation and obligations of online platforms, internet service providers, etc – that are expected to be notified by 15 January 2020.

The apex court also transferred all petitions across the country dealing with regulation of social media to itself, and will conduct its next hearing in the matter sometime in the end of January 2020.

In an affidavit submitted on Monday, 21 October, the Ministry of Electronics and Information Technology (MeitY) told the top court that though technology had led to economic growth and societal development, there was also an exponential rise in hate speech, fake news and anti-national activities.

On Tuesday, a bench of Justices Deepak Gupta and Aniruddha Bose was hearing Facebook’s petition to transfer cases in different high courts, on regulation of social media and the encryption and traceability of messages, to the Supreme Court.

The Centre’s affidavit was filed after the judges had, on 24 September, asked the Centre to apprise it within three weeks about the time frame needed to come up with guidelines to curb misuse of social media in the country.

What Happened in the Court Hearing?

During Tuesday’s hearing in the Supreme Court, MeitY informed the court that it is likely to notify the new Intermediary Guidelines (Amendment) Rules (originally floated in 2018) by around 15 January 2020.

The Centre is seeking to use these new intermediary guidelines to bring in regulation of social media and messaging platforms by treating them as intermediaries and compelling apps like WhatsApp to introduce traceability of messages. 

Decryption of encrypted messages (a key feature of WhatsApp) was specifically brought up in the apex court during the hearing, with the Attorney General KK Venugopal (appearing for the state of Tamil Nadu) arguing that legal provisions like Section 69 of the Information Technology Act allow the government to ask for decryption.

Justice Deepak Gupta said the question to be considered on this issue is whether the government could compel intermediaries to decrypt information. Senior advocate Mukul Rohatgi, who is representing Facebook, said that the law doesn’t allow them to force the intermediaries to decrypt. Under the IT Procedure Rules 2009, they have assist the government only to the extent within their control.

The Centre says strong guidelines including obligations to decrypt are aimed at curbing misinformation and curb potential violence arising from the circulation of rumours. The intermediary liability rules pertain to its parent provision, ie Section 79 of the Information Technology Act.

During the hearing, Solicitor General Tushar Mehta, appearing on behalf of the Centre, also argued that no intermediary could claim to be so secure that it cannot be ‘misused by terrorists’, Bar & Bench reported. He argued that the individual rights of the users of the technology would have to be balanced against individual rights.

What Does the Government Affidavit Say?

The affidavit filed by Pankaj Kumar, additional secretary, MeitY, said, "As the internet has emerged as a potent tool to cause unimaginable disruption to the democratic polity, it was felt that the extant rules be revised for effective regulation of intermediaries, keeping in view the ever-growing threats to individual rights and the nation's integrity, sovereignty, and security."

"If on one hand technology has led to economic growth and societal development, on the other hand, there has been an exponential rise in hate speech, fake news, anti-national activities, defamatory postings and other unlawful activities using internet/social media platforms," it said.

Referring to a statement of the Union Minister for MeitY given on 26 July 2018 in the Rajya Sabha, the affidavit said the government had promised to initiate a number of measures, including bringing amendments to the Intermediaries Guidelines Rules, 2011, to make intermediaries more liable towards the content that was published and transmitted in order to check misuse of social media platforms and spread of fake news.

Focus Back on Intermediary Liability Rules

On 24 December 2018, the Ministry of Electronics and IT (MeitY), issued the The Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 (“the Draft Rules”).

These proposed amendments, drafted without any prior consultation with the public, propose that messaging apps, social networks, search engines, internet service providers, cyber cafes among others follow a content policing and filtering system.

While the ministry aims to weed out misinformation and curb potential violence arising from the circulation of rumours, in effect, the rules can heavily curb free speech, privacy and enforce surveillance over user content.

The proposed amendments have come under sharp criticism from privacy activists as It would empower the government to sweep more personal data of citizens, monitor our online content and even enforce traceability of a message on texting apps by breaking encryption.

Rule 3(5) of Draft Intermediary Guidelines

The requirement of “tracing out of such originator of information on its platform” mentioned in Rule 3(5) constitutes an attack on the privacy of users by requiring encryption to be broken by messaging platforms such as WhatsApp.

(With inputs from PTI)