Draft Rules Want Social Media Platforms to Help Govt Trace, Remove ‘Unlawful’ Content

If you thought to share confidential information over WhatsApp would be a secure method due to end-to-end encryption, then that could soon be a distant dream.

According to the Information Technology (Intermediary Guidelines [Amendment] Rules), 2018, social media platforms will soon have to end the complete encryption system and remove any “unlawful content” for the sake of the country’s security.

The draft rules, which propose amendments to the Information Technology Act, have stated that an intermediary will be any platform that has more than “50 lakh users in India or is in the list of intermediary specified notified by the government”. The crux of the draft rules, however, remain the attempt by the government to curb expression of free speech over the internet.

Social media platforms such as WhatsApp and Instagram among others all fall within the definition of intermediary as per the Act.

The rules state that when the government issues an order, within “72 hours of communication”, information or assistance concerning “security or cybersecurity” must be provided.

The watershed moment in Indian judiciary concerning information technology was the Shreya Singhal verdict in 2015. The landmark ruling on March 24, 2015, struck down Section 66A of the IT Act, which allowed the arrest of those allegedly posting offensive content online.

The rules state that information about “unlawful acts” can be sought from the intermediaries by “court order” or by being notified by the government itself and the parameter to judge unlawful acts would be Article 19(2) of the Constitution, which places a restriction on freedom of speech and expression.

The parameter for the government to judge an unlawful content would be that it does not violate the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign States, public order, decency, and morality or in relation to contempt of court defamation or incitement to an offence on its computer resource. The rules further state that such a deletion of content “has to be immediate” or at the very least “within 24 hours”.

In the draft of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, Rule 3(9) requires “intermediaries”, or online platforms, to “deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying or removing or disabling access to unlawful information or content”.

The rules also state that privacy policy of the intermediary shall be well publicized for the user of the computer resource to check and mandates that no such platform would “host, display, upload, modify, publish, transmit, information, that is grossly harmful, harassing, blasphemous, definitely obscene, pornographic, disparaging,” etc. The draft amendments state that online platforms will keep a record of “unlawful activity” for a period of “180 days”, double the 90 days in the older version.

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