Miffed at WhatsApp's less-than-satisfactory compliance with the government's directive to combat fake news on its platform, the Centre is reportedly planning to tighten the screws on the accountability front for all internet and social media companies. The development comes in the wake of around 40 incidents of lynching deaths across the country due to mass misinformation spread on WhatsApp, boasting over 200 million users in India.
According to The Economic Times, the government is likely to introduce new guidelines soon to ensure better compliance, speedier action to stop the spread of rumours or offensive content on their platforms, as well as better enforcement. A top official told the daily that the stringent move will involve the notification of fresh clauses under existing intermediary guidelines under Section 79 of the Information Technology Act. "The draft of the guidelines is ready and a legal firm is vetting it. It should be out by September," the source added.
While the above Section makes it clear that intermediaries shall not be "liable for any third party information, data, or communication link made available or hosted" by them, it also mandates them to observe "due diligence". Currently, internet firms such as Google and Facebook, which also owns WhatsApp, are categorised as intermediaries, which act as facilitators and do not actively take part in creating or modifying information.Significantly, the report added that intermediary guidelines under this section, notified in 2011, allowed companies time up to 36 hours to remove objectionable content and name a grievance officer on its website for response. However, these guidelines were not stringently enforced.
So, cracking the whip, the proposed guidelines will make it mandatory for players in the business to name a grievance officer for India, who will not only be tasked with responding to complaints within a few hours but also ensure traceability of content.
"The ball is now in our court. We have to come out with guidelines under Section 79 of the IT Act and then we can take it to WhatsApp [or any other internet company] and say you are not complying with them," said the official, adding, "These will provide us with tools to enforce [rules]. Right now they say that they are end-to-end encrypted so [one] can't trace the origin of messages."
In fact, back in July, Electronics and Information Technology (IT) Minister Ravi Shankar Prasad had hinted at this in the Rajya Sabha, saying that the government was working towards strengthening the implementation aspects of Section 79 to better respond to emerging challenges in the online space.
In a way, this development seems to signal a softening in the government's previous stance. The buzz earlier this month was that the government was mulling an option of actually blocking popular apps, including Facebook, WhatsApp and Instagram, over concerns of fake news as well as the growing misuse of social media for illegal activities such as child pornography and terror. The Department of Telecommunications (DoT) had reportedly even sent out a letter to stakeholders seeking technical inputs on blocking the apps under the provisions of Section 69A of the Information Technology Act, 2000. This section allows the government to block public access to any online information that can threaten public order, or the unity, integrity, defence or sovereignty of India, or impact friendly relations with foreign states.
The telecom industry body Cellular Operators Association of India had been quick to point out that it would be extremely difficult, if not near impossible, to categorically block these apps. But the new proposal is not winning hearts, either.
Citing legal experts, the daily reported that the move to mandate the traceability of messages circulated will open up a "can of worms" since the law will also be binding on text messages on cellular networks. "The government can't expect officials of companies to take decisions on content within a few hours, something the courts will take many years to decide," Rahul Matthan, partner at law firm Trilegal, told the daily. "There are some sites such as Facebook which curate the news feed and play some active control, and we can put responsibility on them, but all messages don't need to be reviewed to solve this."
Furthermore, the proposed guidelines could potentially violate a past Supreme Court's verdict. According to experts, Section 79 rules were subject to review and reading down by the apex court in its landmark 2015 Shreya Singhal judgment so any change in it might impact constitutional rights. "The legislature can't amend the concepts which have been laid down by the apex court during the Singhal judgement," said Matthan, adding that the government needs to come up with a law against lynching, not against the messenger.
In a related development, Prasad met with WhatsApp CEO Chris Daniels and asked the company to find solutions to current challenges that are downright criminal violation of Indian laws. The minister had also said the company will need to have a "proper corporate entity located in India" along with a local grievance officer, a system to trace the origin of fake messages and better compliance with laws of the land. "We won't appreciate a scenario where any problem will have to be answered in America," Prasad had added.
WhatsApp has reportedly assured the government that it would soon take steps on all these counts. How soon, is the big question now.