By Prof Satya Narayan Misra*
The Information Act 2000 will have now a set of new rules which will mandate strict government scrutiny over top social media players such as Twitter, Facebook, Google, Instagram & YouTube over hosting illegal and inflammatory user content. The companies now run the risk of losing their immunity shield or safe harbour protection against third party content violation. It may be recalled that Google had filed a case in Delhi High Court to set aside a single judge order to remove offending content from the internet, as it had mischaracterized its search engine as an intermediary. They had also contended that their right to privacy, which was decreed by the Supreme Court as a fundamental right in the landmark Putt Swami Case (2017), was being infringed upon.
The IT Act of 2000 has a chequered history. The Supreme Court in the landmark Shreya Singhal Case (2015) had struck down Section 66A as unconstitutional, as it had put restrictions on online speech. It did not agree with the government’s view point that the restrictions imposed were reasonable in terms of Art 19(2), as they were arbitrary, having a ‘chilling effect’ on free speech (Justice Nariman). It, however, read down Section 79 (Exemption of Intermediary) by stipulating that online intermediaries would be obliged to take down content only on receiving an order of the court or government authority.
In the IT Act of 2000, Section 79 of the Act has a Safe Harbour Protection to social intermediaries, provided they are not actively involved in the dissemination of the message or modified the text in any way. In practice, however, the Cambridge Analytics Scandal in 2018 clearly revealed how data from Facebook was used in political slugfest between the Congress party and BJP. In Zoom application for conducting online classes and webinars, e-mail address and passwords of over 5 million zoom users have been compromised and sold in dark web for less than a rupee! Passwords constitute a very sensitive data and as per IT Act 2000, any such misuse of password would attract five-year imprisonment.
With the rise of FAANG (Facebook, Apple, Amazon, Netflix and Google), the whole dynamics of global business, IT application, information storing and entertainment dissemination has changed humongous. Facebook is a data monster which churns out 1.3 lakh photos and 5.1 lakh comments per minute on a global basis. Amazon has reduced processing time and significantly increased shopping time. Covid-19 has been a godsend in boosting e-commerce as never before. Given such overarching reach of the social intermediaries, Big data has become an enticing candidate for profiteering. Rise of professional hacking group, dark webs of drug trafficking and crypto currency users have become the sinister reality of a hyper connected world. Internet has not only made the world flat, as Thomas Freidman wrote, it has also hastened the pace of transfer of data and visuals but also muddied the ethical rectitude. Bob Reich, a Professor from Harvard University believes that all these said intermediaries would bring ‘net harm in the next decade’.
Noting these concerns, US & EU have issued a joint statement to protect victims from encryption safeguard of criminals. The US Government insists that technology companies must include a mechanism in the design of encryption products and services so that the Government has access to data, when such criminal activities or sexually explicit images of minors are peddled by the said intermediary. Quite clearly the global trend is to give primacy to national security over right to privacy, speech and expression in order to quell violence, smut and ill will. Given the imperative to tread with caution in matters involving national security, the present IT Regulations (2021) to ensure ethical behaviour, responsibilities and accountability on the part of social media platforms is well timed and necessary. The safe harbour protection under Section 79 of IT Act, 2000 has been violated in sprit and practice. The insistence on the social intermediaries to exercise due diligence, appoint a public grievance officer as a go between the government and aggrieved citizens is reasonable.
The new amendments to Section 79 of IT Act thus envisages due diligence by intermediaries by specifying categories of content that users are not allowed to upload, take down content within 36 hours of government/court order, retaining blocked content and a redress mechanism. It also wants technology based measures to identify content depicting child sexual abuse, and disproportionate interests of free speech. This is where the court will be called upon to decide whether free speech has been excessive or not.
The intermediaries are essential cogs in the wheel of exercising the right to freedom of expression on the internet. Most countries in the world have introduced a legislation to ensure that this wheel does not stop spinning. The Centre for Internet & Society in a study of seven intermediaries have found out that in most cases the process is flawed and the principle of natural justice has been followed. The first amendment to the US Constitution (1791) said: The Congress shall not make any law that abridges freedom of speech. Freedom of Press was explicitly mentioned. Indian Constitution has taken a more guarded approach to free speech and the Supreme Court is often called upon to decide if the restriction on free speech imposed by the state is reasonable or excessive/arbitrary. The Court applies four tests, viz legitimacy, suitability, necessity and proportionality to arrive at a decision. Of these, proportionality test is most important, as per which the court tries to find out if the intended impact is disproportionate. In the Shreya Singhal Case, the two judges found that the impact would be disproportionate and upheld on line postings, as long as they do not incite violence and hatred. While Section 79 in its amplified form is welcome, the government has to be more careful in ensuring due process and natural justice before hauling intermediaries over the coals in a high handed manner. Else the slugfest between media giants and the government will witness increased involvement of the court as a defender of free speech.
*Prof Misra is Professor Emeritus
DISCLAIMER: The views expressed in the article are solely those of the author and do not in any way represent the views of Sambad English