Analysis | Supreme Court had cautioned government on invasion of individual privacy

A 2019 Supreme Court order, used by the government to justify its new Information Technology (IT) Rules, which compel encrypted social media messaging platforms to disclose their users’ identity, also cautions the Centre from doing anything which amounts to invasion of individual privacy.

On September 24, 2019, hearing a petition filed by Facebook, the apex court showed deep concern at the utilisation of social media for committing crime. It said the medium had become a source for pornography. Paedophiles used social media in a “big way”. Criminals exploited it to run weapons, drugs and contraband. Hate and violence were shared and spread through these virtual platforms. The court had even felt that some messages on social media may even threaten national sovereignty.

It was in this context, the court had called for a “properly framed regime” to allow the government to get information about first originators of messages from “significant” social media intermediaries with end-to-end encryption technology like WhatsApp.

The court had exercised restraint too. It warned that “de-encryption, “if easily available, could defeat the fundamental right to privacy”.

The court had clarified that the government should “ensure that the privacy of the individual is not invaded”. The order had also underlined that traceability should be restricted to “specific circumstances”.

But WhatsApp finds traceability under Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 “disproportionate”. It said the 2021 Rules did not restrict traceability to “specific circumstances”. The privacy of every one of its users would be compromised as there was no way to predict which message would be subject to a trace order from the government.

‘Chilling on free speech’

In its petition before the Delhi High Court, the social media giant said that it would have to “build an ability to identify the first originator of every message, to be served up to the government forever”. This means even legal users and their messages would be under watch. The effect would be chilling on free speech. Citizens will not speak freely for fear that their private communications would be traced and used against them.

“The essential role of the test of proportionality is to enable the court to determine whether a legislative measure is disproportionate in its interference with the fundamental right [of personal liberty/privacy]... In determining this, the court will have regard to whether a less intrusive measure could have been adopted consistent with the object of the law and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue,” the Supreme Court had laid down the law in its privacy judgment in the Puttuswamy case. The principle was reiterated by the Supreme Court in the Anuradha Bhasin case on Internet freedom.

Besides, the 2021 Rules is a subordinate legislation under the Information Technology Act. Neither the Act nor any other law, for that matter, specifically requires a social media intermediary, using end-to-end encryption, to reveal the identity of the first originator of a message. However, in this case, the subordinate law has overshot the original intent and boundaries of the parent Act.

“Section 79 (of IT Act) only allows the Central Government to prescribe the due diligence that intermediaries must observe to maintain their immunity. Compelling an intermediary to fundamentally alter its platform to enable the ability to identify the first originator of information in India falls far outside ‘due diligence’,” WhatsApp has contended in court.

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Printable version | Sep 19, 2021 11:14:57 AM |

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