Vague Intermediary Guidelines Fuel Data Privacy Concerns & Leave a lot to Guesswork for Facebook, WhatsApp and Other Intermediaries

Misinformation Leading to Misdirected Intermediary Guidelines

Back in the year 2013, a fake viral video circulated on WhatsApp was enough to escalate communal tensions in Muzaffarnagar District taking the lives of 27 people. Well, instances of spreading misinformation on social media have only skyrocketed during the last few years. Blame it on digital illiteracy of its users or just the lack of exercise of diligence on their part, the alarming rise of misinformation has proved to be fatal on umpteen number of instances creating a state of information disorder in the online universe.

Against this backdrop, the debate around making social media platforms accountable intensified and ultimately led to amendments in the social media intermediary guidelines 2011. 

Do these guidelines solve the problem? Well, not really. It has only opened Pandora’s box to a number of legal issues and legal battles. In fact, WhatsApp moved to Delhi High Court on Wednesday suing the Indian Government against the intermediary guidelines. 

So what’s the hue and cry about?

The privacy of millions of social media users is at risk

Messaging and social media companies merely act as intermediaries for the dissemination of information.  

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 now mandate these intermediaries to identify the first originator of the information. This provision has a direct bearing on the privacy of millions of social media users in India. 

How you may ask?

Well, the provision forces the social media companies to trace and unmask the identity of the first originator of information in case of serious offences and grounds of public order. ‘Public order’ being a broad term and allows the government to demand information at will. Now for a company like WhatsApp which assures end to end encryption to its users, this provision becomes problematic as it entails breaking away from the encryption mechanism and compromising the privacy of its users.

Is there an alternative available to such kinds of intermediaries so as to ensure the protection of the privacy rights of users without breaching their privacy? 

Akash Karmakar, Partner, Panag & Babu answers in the negative. 

Messaging platforms by design were intended to be intermediaries that act as a conduit for information. These rules direct intermediaries to undertake actions that would inherently make such intermediaries responsible for interception and monitoring. Directing intermediaries to ensure traceability, without diluting end to end encryption is not possible.

Broad obligations with respect to tracing requirements may give rise to potential conflict with foreign laws for intermediaries having a global user base.

The aspect of the transgression of primary legislation

The law pertaining to Intermediary guidelines is contained under section 79 of the Information Technology Act, 2000. It safeguards intermediaries against third party content on their platform on the precondition that the intermediaries exercise due diligence.

However, the controversial rule pertaining to identifying the originator of information seems to have overshadowed the intent behind granting the safe harbour immunity to social media and other intermediaries.  Furthermore, the said rules clearly specify that the safe harbour immunity under section 79 will not apply to intermediaries on their failure to comply with the new guidelines making them liable for punishment under any law in India.

In fact, there has been a slew of petitions filed in various High Courts across the country on the ground that the new guidelines are ultra vires the parent act since the announcement of the guidelines 3 months back.

Sajai Singh, partner JSA explains it very succinctly, he says,

In a Parliamentary system like in India, it is the Parliament that makes law. This law is called Primary Legislation, like the Information Technology Act, 2000. This contains broad outlines and principles that make the Law on the subject. Then, the Parliament delegates secondary or subordinate legislation to the Executive. The Executive came up with the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. This secondary legislation needs to be within the aegis of the primary law - the IT Act. There is much debate that it isn’t, and thus the potential for challenge.

Half-baked framework and vague definitions add to the confusion and guesswork

There are several provisions in the rules that require more clarity. For example— Rule 4(2) which mandates messaging platforms to enable tracing of originators of information on their platform does not prescribe the conditions on which such power can be exercised. Furthermore, guidelines do not define terms like ‘traceability’ and ‘unlawful content’ leaving a lot of room for interpretation besides failing to provide for specific penalties.

Compliance provisions not well thought out

While the rules seek to categories social media intermediaries based on the number of users, the approach does not appear to be well thought out. Questions arise on how the calculation is supposed to be made making the compliance and reporting framework ambiguous. It also fails to take into consideration factors such as variance in numbers on account of global and local members on social media platforms and messaging apps. That's not all, not all intermediaries are the same, in such a scenario, choosing to go with a classification based on numbers comes across as a one-dimensional approach.

Rules cause great concern about lack of transparency in regulating intermediaries

From setting up grievance mechanisms, issuing periodic reminders to demanding content takedown requirements, the new social media guidelines seem to have an ambitious recipe in terms of a watchdog framework, food for thought for small intermediaries though, the increased compliance burden is likely to increase costs and eat up a fraction of a company’s bottom line.

Akash Karmakar, Partner, Panag & Babu sums up the situation perfectly. He says, "It is ironic that the legislative intent of these Rules was to address “growing concerns around lack of transparency, accountability and rights of users related to digital media” whereas, in practice, these Rules would cause great concern about the lack of transparency in regulating intermediaries. Effectively depriving intermediaries of their intermediary liability protection by making them gatekeepers to their user’s actions, will force social media companies to proactively intervene, often in ways that impinge the freedom of speech.