‘Strike a balance’: Supreme Court’s advice to Centre on framing social media rules
The Supreme Court has given the Union government three weeks to submit details of its progress in coming up with regulations to prevent misuse of social media, while protecting the privacy of individuals.
The court is hearing a case in which Facebook wants petitions filed in the high courts of Madras, Bombay and Madhya Pradesh to be transferred to the Supreme Court. Most of the petitions deal with the regulation of social media. The Madras one also deals with the possibility of linking social media accounts with the Aadhaar numbers of users and of social media companies not responding to requests from law enforcement agencies.
The bench of justices Aniruddha Bose and Deepak Gupta said the government has to frame the regulations and that courts are not the right fora to deal with the issue. It added that the issue spans the state’s sovereignty, an individual’s privacy, and the imperative of preventing illegal activities.
The hearing before the apex court is important because most social media companies claim intermediary protection. Their position is that they are not really responsible for the content on their platform, and that they can’t be held accountable for this because they are not media companies (despite almost all of their revenue coming from advertising).
Justice Gupta, who was the most vocal during the hearing, did not hide his unease at the development technology has made, virtually invading privacy of individuals.
Both judges felt the necessity to identify the originators of fake news that triggers violence, is a potential risk to the country’s security, or defames individuals.
For instance, last year, India witnessed a spate of killings that seemed to originate from fake news about kidnappers being circulated on WhatsApp, owned by Facebook.
Justice Gupta also lashed out at the web in general, claiming that he had discovered that it was possible to buy an AK-47 on the Dark Web. “I learnt this within half an hour after I went back home on the last date of hearing.”
The judge refused to believe the explanation offered by intermediaries that messages on platforms such as WhatsApp are encrypted, making traceability and regulation difficult. “If there is technology to encrypt then there must be some technology to decrypt,” justice Gupta said. The judge emphasised on the need to trace and punish the originator of anonymous defamatory writings or fake news to protect an individual’s rights.
“Nowadays people write anything and get away. There is no fear. Governments can still protect themselves. An individual whose reputation gets tarnished (through a comment or message) has the right to know who wrote the defamatory piece. He or she should be able to go to court, file a civil suit and seek compensation,” he added.
Attorney general KK Venugopal supported the judge’s view. Appearing for the Tamil Nadu government, he opposed the transfer petitions and once again attacked the companies for circumventing the hearing before the high court. He said the top court must give the HC a chance to determine the issue. “These companies have no business to operate in India if they cannot cooperate with law enforcement agencies,” he told the court. The internet has become a medium for pornography and terrorism, he added.
Solicitor general Tushar Mehta informed the court about the Centre’s endeavour to regulate the intermediaries on this front. He said the ministry of information and technology was in the process of framing regulations and it was not possible to state how much time would be taken to finalise it. At this, the court gave three weeks to the ministry to file an affidavit, detailing the progress made so far in this regard.
Mehta said false clips circulated online have been the cause of hate crimes in various places. He claimed an incident in Tanzania spreads like a wildfire as an incident of Kerala and said the Centre was not opposed to Madras HC hearing the matter and giving a final decision.
Justice Gupta said the government had to take the lead. “There has to be strict guidelines. But my privacy should also be protected. My personal information cannot be entirely disclosed just because some police commissioner asked for it... Requesting you to frame the guidelines as soon as possible.”
Facebook spokesperson, when contacted, said the matter was sub judice and the company would not want to say anything at this stage.
Advocate and the executive director of the Internet Freedom Foundation (IFF) Apar Gupta said, “While the Supreme Court order is balanced there is concern that today’s court order may prompt the government to come up with intermediate liability rules in a hurry which could be against rights of internet users. It’s also a matter of concern that court exceeded its jurisdiction in a transfer petition to pass such orders.”
Privacy rights lawyer Pranjal Kishore said, “The petitions filed in different high courts sought linking of Aadhar with social media accounts. Their scope has now expanded to effective implementation of the IT Act, guidelines for prevention of cyber crime, etc. These are complex issues and touch upon technology and its effect on privacy and free speech. The court has thus wisely left it to the government to come up with a legislative framework.”