Controversies over New IT Rules, 2021

News: Recently, messaging platform WhatsApp has moved the Delhi High Court to challenge the traceability provision in the New IT Rules 2021. Earlier the Ministry of Electronics and IT (MeitY) had sent a notice to WhatsApp asking it to withdraw a controversial update to its privacy policy which might be a threat to Data Protection of Indians.

What is Traceability Provision within New IT Rules?

  • It requires intermediaries to enable identification of the first originator of information on their platforms.
  • Rule 4(2) of the Intermediary Rules states that a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order or an order passed by a competent authority under the Information and Technology (IT) Act 2000.
  • Failure to comply with this requirement would take away the indemnity provided to social media intermediaries under Section 79 of the IT Act.

Areas of Concern:

  • This breaks end-to-end encryption and impermissibly infringes upon users’ fundamental Rights to privacy and Freedom of speech. Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution (Puttaswamy Judgement 2017). States throughout the world have recognised the “important benefits” of end-to-end encryption and the dangers of undermining that security protocol.
  • Freedom of Speech and Right to Privacy encourages users to express their ideas and opinions, report unlawful activities, and challenge popular views without fear of reprisal, whereas enabling the identification of the first originator of information in India subverts privacy and discourages free expression of views.
  • Such a requirement would put journalists at risk of retaliation for investigating issues that may be unpopular, civil or for discussing certain rights and criticizing or advocating for politicians or policies. Clients and attorneys who could become reluctant to share confidential information for fear that the privacy and security of their communications are no longer ensured.
  • Traceability would not be effective in finding the originator of a particular message because people commonly see content on websites or social media platforms and then copy and paste them into chats. It would also be impossible to understand the context of how it was originally shared.

What are these New IT Rules?

  • The guidelines had asked all social media platforms to set up a grievance redressal and compliance mechanism. This included appointing a resident grievance officer, chief compliance officer and a nodal contact person.
  • The IT Ministry had also asked these platforms to submit monthly reports on complaints received from users and action taken. A third requirement was for instant messaging apps was to make provisions for tracking the first originator of a message.
  • Failure to comply with any one of these requirements would take away the indemnity provided to social media intermediaries under Section 79 of the Information Technology Act.

What happens in case of Non-Compliance?

  • As of now, nothing changes overnight. Social media intermediaries will continue to function as they were, without any hiccups. People will also be able to post and share content on their pages without any disturbance. Social media intermediaries such as Twitter, Facebook, and Instagram have so far not appointed any officer or contact person as required under the new rules.
  • They have also failed to submit monthly action taken reports on grievances and complaints submitted to them by users. Thus, protection under Section 79 of the IT Act does will not hold for them.