Opinion | Don’t shoot the digital messenger
If messaging apps bow to government pressure and offer self-regulation and intervention, they will set a dangerous precedent
In the wake of an epidemic of fake news spread over WhatsApp, the government has now threatened action against the messaging app. It has directed WhatsApp to curb fake news by tracing the origin of ‘sinister’ messages, among other measures. This is tantamount to asking the mailman to look at the contents of mail and screen messages using an amorphous yardstick to ensure that no objectionable messages are delivered. Such sabre-rattling to badger messaging platforms to participate in combating malevolent content points to a grim trend—one of shooting the messenger rather than legislating to criminalize the generation of fake news.
Messaging platforms typically offer end-to-end encryption to ensure that messages are sent securely and minimize the risk of interception. The messages are, therefore, transmitted from the sender to the receiver in an encrypted format, readable only after decryption at the receiving end. As the messaging platforms act as mere conduits for encrypted information, they deny themselves the ability to decrypt or intercept messages sent through their platforms by design.
Following instances where network providers contested liability for third-party content hosted by them, the Information Technology Act, 2000, provided that “intermediaries” shall not be liable in situations where they acted only as a conduit for transmitting information, albeit including pernicious content. To qualify as an intermediary and avail of this safe harbour exemption under section 79 of the IT Act, a messaging platform must not be able to intercept, select or modify the data transmitted via a communication link made available or hosted by it. As messaging platforms currently don’t undertake such functions, they are able to avail of this provision and are exempt from liability for any third-party information or data they transmit.
Directing messaging platforms to curb fake news by monitoring the messages on their platforms would not only rob them of their status as intermediaries, but simultaneously burden them with the liability of having to police their platform for content categorized as objectionable by an elastic yardstick dictated by the prevailing government’s sense of morality.
Freedom of speech can only be curtailed to the extent of the limited circumstances set out in Article 19(2) of the Constitution, and that too by promulgation of a law that imposes “reasonable restrictions”. Given this, the directives issued to WhatsApp, which by design is intended to be a private messaging app, appear to be a case of both political posturing and regulatory overreach.
It is the government’s prerogative to strengthen enforcement measures to penalize those generating and abetting the dissemination of fake news. It is, therefore, reprehensible that the executive issues directions while palming off its responsibility. Moreover, if implemented, these directions could trespass upon freedom of speech and the right to privacy.
Paradoxically, if messaging apps act on directives that are issued without due process, not only would they be robbed of the exemption from liability conferred by the IT Act, they would also violate the privacy of their users without the justification of having been compelled to do so by law. This would expose them to dual liability. The first would be under the IT Act, since they would have unwittingly assumed the onerous obligation of policing their messaging platform at the behest of the executive. The second would be on account of infringing the fundamental right to privacy without due process.
In 2015, Section 66A of the IT Act was struck down by the Supreme Court because it impinged on the right to free speech and conferred discretionary powers that were being abused by law enforcement authorities. Ironically, the erstwhile Section 66A provided for penalties for a person who sends information they know to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, or to deceive or to mislead the addressee or recipient about the origin of such messages. This provision, notwithstanding the risk of abuse, would have given the law enforcement machinery the necessary powers to curb fake news.
In the absence of such provisions, India needs legislation which balances public security with privacy and prescribes due process. The messaging medium should not be culpable; those abusing it should be.
Messaging apps appear to have placed themselves in the crosshairs by agreeing to offer features and functionalities that raise awareness, even if such moves don’t directly curb fake news. Given that acceding to the government’s demands may result in messaging apps starting down the slippery slope of surveilling messages, it is incumbent upon them to resist taking any steps that would impinge on their users’ privacy.
The Supreme Court also recently took strong note of the Union information and broadcasting ministry’s decision to set up a social media hub for monitoring online data, with the bench stating that if the government started tapping citizens’ WhatsApp messages, India would be moving towards becoming a surveillance state. This trend does not augur well for the ease of doing business for technology companies in India. Perhaps it is time for the government to redirect its attention to where it will do the most good.
Akash Karmakar is a data privacy and fintech lawyer at Veritas Legal.
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