Centre-WhatsApp tussle over new IT rules 2021

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Recently central government came up with new IT rules 2021. It has sparked a new controversy since WhatsApp has filed a case against the Indian government in High Court. It has given birth to a new debate which consists of the dilemma of absolutivity Vs reasonability. WhatsApp claims absolutivity based on liberal values where it claims for privacy through end-to-end encryption. However, the new IT rule 2021 proposed by the central government wants reasonable restrictions in order to counter new challenges. This article will analyze the same dilemma.

What are the new IT rules 2021?

Recently, the government has notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. These rules were brought to deal with social media and over-the-top (OTT) platforms. Social media platform intermediaries have been divided into two groups based on a number of usage – Social media intermediaries and Significant social media intermediaries. Any social media platform with more than 50 lakh users will be designated as a Significant Social Intermediary. Largely rules are for significant social media intermediaries which influence society at large.

According to the new rules 2021, Intermediaries shall appoint a Grievance Officer to deal with complaints. Details of such officers need to be shared with the government. Earlier (As per 2011 rules), one month time was given to dispose-off the case. As per new rule 2021, the Officer is responsible for acknowledging complaints within 24 hours and resolving them within a reduced timeline of 15 days. The grievance officer is required only for significant social media intermediaries. A whole host of web services will send periodic emails reminding them not to do anything “illegal.”

According to the IT Rules 2011, objectionable content includes anything that “threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states or public order”. Platforms require them to provide the details about the origination of the message on social media. Within 36 hours upon receiving an order from the concerned authorities content should be removed. A three months window was provided for social media platforms to comply with these new rules.

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Why new IT rules 2021 are important?

If digital technology benefits society then it also harms society in case of misuse. Supreme court in 2018 had observed that the Government may frame necessary guidelines to eliminate child pornography, rape, and gang rape imageries, videos, and sites in content hosting platforms and other applications. In fact, in 2020, an Ad-hoc committee of the Rajya Sabha laid its report after studying the alarming issue of pornography on social media. Consequently, the government has brought OTT platforms under the ambit of the Ministry of Information and Broadcasting in 2020.

Major digital media platforms operating in India are of foreign origin. In the context of national security, it is necessary to curb any disturbances from outside which create enmity in the community. Central Board of Film Certification, a statutory film-certification body was created to ensure healthy public entertainment and education in 1952. Earlier its name was Central Board of Film Censors. OTT platform emerged in India after the proliferation of the digital world. It demanded regulations similar to featured films since it was unregulated so far.

New rules 2021 is trying to fix accountability against misuse and abuse by social media users. It will deter issues like communal riots and social unrest due to misinformation. It is needed to protect women from sexual offenses on social media. Amnesty International report claims that gender-based online violence is increasing in India. These kinds of remarks retard women’s participation in politics and other public life.

Absolutism neither possible nor desirable

We often observe communal riots in India based on perceptions. For example, in 2017, India also saw a wave of mob attacks and lynching of innocent people spurred by online accusations of child abductions. If the state could know about the originator of such fake accusations, then it could have deterred other lynchings. WhatsApp is refusing to provide the name of the originator since it follows an end-to-end inscription policy. Right to privacy backed by the supreme court in the Puttaswamy case is being put forward by WhatsApp to support its argument.

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If privacy is misused and leads to social unrest then there will be a need for reasonable restrictions. There is nothing like absolutism in Indian society. First, Even the Indian constitution provides reasonable restrictions on freedom of speech and expression. Champion of freedom of speech and expression, J.S. Mill also put reasonable restrictions and allow freedom until and unless it harms others. Second, Indian secularism does not completely free religion from the state. Third, the Separation of power in India also doesn’t follow in the strict sense.

Fourth, In the context of multiculturalism, Bhikhu Parekh does not support unconditional special rights to minorities – ‘It will be provided until they harm the nation.’ Fifth, Even Karl Popper defines a limit to tolerance – ‘One should not tolerate those who are intolerant beyond a point.’ Sixth, A recent judgment said that no fundamental right including the right to privacy is absolute. The IT rules provide for reasonable restrictions such as Sovereignty and Integrity of India, Security of the state, friendly relations with the Foreign States, public order, and incitement to an offense.

Hollow arguments against new IT rules 2021

So, WhatsApp’s argument of completely stay away from privacy is not logical as it harms society. Apart from absolutist arguments, WhatsApp is also crossing its domain. The state is only sovereign in India. Laws made by the State should prevail over others. Anything that violates the sovereignty of India can be null and void. Rules framed by WhatsApp lack consensus since it is not a part of the social contract. The state even claims its control even when a child was in a mother’s womb. That’s why after particular months, abortion is not allowed.

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Even WhatsApp contradicts its own arguments if we look into WhatsApp’s new privacy policy. It allows sharing of the data of users with the parent company for marketing and advertising purposes itself is a violation of privacy. The central government has clearly stated in the new IT rules 2021 that it will only be used as the last option. Thus, in normal conditions, it respects the privacy of an individual. The first amendment of the US constitution protects free speech. Although that protection is against the government and doesn’t apply to private companies.

Some of the esteemed people are arguing on the idealist notions that lack gravity. First, According to them, these are “rules” and not “laws”. But section 87 (2) of the IT Act, 2000 provides power to frame rules. Second, They accused the government didn’t consult with different stakeholders. It should be understood that India follows representative democracy and not a direct democracy. Thus, the elected government can take decisions without frequent consultations.

WhatsApp frames its own rules, as well as they themselves, moderate user’s content. It violates the principle of justice which says “you can’t be a judge in your own case”. Thus, WhatsApp should comply with Indian norms and not vice-versa.

Footnotes

  1. PIB | Information Technology Rules 2021
  2. The Hindu | Govt.’s draft rules to regulate social media echo SC orders
  3. Rajya Sabha | Report of Adhoc committee 
  4. DW | Scourge of violence-inciting fake news tough to tackle
  5. Indian Kanoon | Justice K.S.Puttaswam
  6. Times of India | Right to privacy can’t be absolute, may be regulated
  7. Scroll.in | Four reasons to be worried about India’s new IT rules
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