The draft rules proposed by the government to curb “unlawful content” on social media that make it mandatory for intermediaries to trace the “originator” of such content have drawn strong criticism from the Opposition. The latter contend that the state is expanding the scope for surveillance of citizens.
However, a close look at the draft Information Technology (Intermediaries Guidelines) Amendment Rules, 2018, shows that the proposed changes are largely in line with developments on this front in cases before the Supreme Court in recent months.
Court’s concern
While the Centre itself has been informing the court since October about its intentions, the court has also voiced its concern over irresponsible content on social media.
In fact, in a July 17, 2018 judgment in the Tehseen S. Poonawalla case, the court gave the government a virtual carte blanche to stop/curb dissemination of “irresponsible and explosive messages on various social media platforms, which have a tendency to incite mob violence and lynching of any kind.”
For instance, Rule 3 of the draft speaks about the “due diligence” to be observed by online platforms that have over 50 lakh users.
Norms for access
It proposes the publication of rules, a privacy policy and user agreement for access to a social intermediary’s resource. Clause (1) of Rule 3 mandates that a user cannot host, display, upload, modify, publish, transmit, update or share information, for example, which is pornographic, paedophilic, racially or ethnically objectionable, invasive of another’s privacy, harms minors in anyway, etc.
Now consider this. On December 6, a Supreme Court Bench, led by Justice Madan B. Lokur, mentioned online giants Google, YouTube, Facebook, Microsoft and WhatsApp and recorded that “everybody is agreed that child pornography, rape and gang-rape videos and objectionable material need to be stamped out.”
The same order also noted submissions by senior advocate Kapil Sibal, for WhatsApp, that “they have an end-to-end encryption technology, due to which it will not be possible to remove the content”.
Subsequently, on December 11, the Bench ordered the Centre to frame the necessary guidelines/Standard Operating Procedure (SOP) and implement them within two weeks to “eliminate child pornography, rape and gang rape imagery, videos and sites in content hosting platforms and other applications”. The court then listed the case for February 2019. The draft rules have come within two weeks of the Supreme Court order.
These two orders came on a suo motu case being heard in the Supreme Court from 2015 to curb online sexual abuse.
‘Safer social media’
Past orders in the case show that since October, the government has been trying hard to convince the court that it really wants to make social media safe.
Thus, a Supreme Court order of October 22 records that the Centre has already prepared a SOP “for taking action by the security/law enforcement agencies under Section 79(3)(b) of the Information Technology Act. A November 28 order records the submission of Solicitor-General Tushar Mehta indicating that “certain actions were required to be taken by the intermediaries”. These included setting up of proactive monitoring tools for auto-deletion of “unlawful content” and setting up a 24X7 mechanism for dealing with requisitions of law enforcement agencies.All these mechanisms can be found in the various clauses of the draft rules.
The draft rules require the intermediary to trace the “originator of information” for authorised government agencies.The intermediary has to produce the information in 72 hours, but only if the request is based on a lawful order, in writing and concerns State security or investigation or prosecution or prevention of an offence, which may include lynching or mob violence. Besides, the draft rules put the onus on social media giants to “take all reasonable measures” to protect individual privacy as required under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules of 2011.
SC in July 17, 2018 judgment in Tehseen S. Poonawalla case: It shall be the duty of the Central government as well as State governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind. The police shall cause to register an FIR… | Draft rule 3 (5) of the Information Technology (Intermediaries Guidelines) Amendment Rules, 2018 proposes social media intermediaries to provide information/assistance when required by “lawful order” by any government agency for reasons of State security, cyber security, investigation, detection, prosecution or prevention of offences. These offences may include mob violence, lynching, online sexual abuse, etc. The “originator of the information” needs to be traced to register an FIR. |
SC order on December 11 in Re: Prajwala Letter case: The Government of India may frame necessary guidelines/SOP and implement them within two weeks so as to eliminate child pornography, rape and gang rape imagery, videos, sites, content hosting platforms and other applications. | Rule 3 (2) (b) of the draft Information Technology (Intermediaries Guidelines) Amendment Rules, 2018 proposes social media intermediaries to publish rules, privacy policy to stop users from engaging in online material which is paedophilic, pornograohic, hateful, racially and ethnically objectionable, invasive of privacy, etc. |
SC order on November 28 in Re: Prajwala Letter notes that Solicitor General informs the court that “certain actions are required to be taken by intermediaries”:
a. Set up proactive monitoring tools for auto-deletion of unlawful content by deploying artificial intelligence based tool | Draft rule 3(9) says the intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or contents |
SC order on November 28 in Re: Prajwala Letter notes that Solicitor General informs the court that “certain actions are required to be taken by intermediaries”: b. Set up a 24X7 mechanism for dealing with requisitions of law enforcement agencies, prompt disposal of requisitions and appointment of India-based contact officer and escalation officers. | Draft rule 3 (7) (iii) proposes intermediaries to “appoint in India, a nodal person of contact and alternate senior designated functionary, for 24X7 coordination with law enforcement agencies and officers to ensure compliance to their orders/requisitions made in accordance with provisions of law or rules. |
October 22 SC order in the Prajwala case records that government has prepared an SOP for taking action by the security/law enforcement agencies under Section 79(3)(b) of the Information Technology Act | Draft rule 3 (8) proposes that when an intermediary receives actual knowledge in the form of a court order or is notified by a government agency under Section 79(3)(b) of the Information Technology Act, it shall remove or disable access to unlawful acts. |
