Friday, 28 May 2021 | Pioneer
The social media regulation rules have created a chasm between the believers and the naysayers
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, are like a cat set among the pigeons. The Government says the rules have been enacted for effective oversight over social media platforms and to bring the digital media and streaming platforms under a strict regulatory net. The most important social media regulation rule in the last two decades has fuelled angry reactions not only from social media giants like WhatsApp, Facebook and Twitter, but also from the public. Those supporting the platforms say it is an attempt to force the companies to break their end-to-end encryption protocols for both receivers and originators. Some alarmists go to the extent of saying it heralds a surveillance State. Both are crying hoarse about the violation of the citizen’s freedom of expression and right to privacy. The protests are focused on one particular ingredient in the new rules, that is, the Government asking the intermediary platforms to make provisions for “identification of the first originator of the information”. The identification “is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment of not less than five years,” a Government release says.
The Government defends the rules saying these are not enacted in isolation but have precedence in countries like the United Kingdom, US, Canada, New Zealand and Australia. The critical question is whether the rules violate the right to privacy. On August 24, 2017, the Supreme Court declared the right to privacy as a fundamental right protected under the Constitution and stemming from the fundamental right to life and liberty. The right, like all rights, comes with reasonable restrictions. Who will decide if the new tech rules are reasonable restrictions? There is a joint parliamentary committee which is to submit its report on the Personal Data Protection (PDP) Bill, 2019. It has been granted several extensions. The PDP Bill becomes relevant to the current debate because it has the potential to explain what precisely are the reasonable restrictions on the right to privacy. The right itself needs to be settled conclusively by courts and is not automatic. In the absence of a PDP law, the citizens will be in the dark as to what their specific privacy rights and obligations are with relation to sensitive personal data like consent, processing, sharing with prior consent, having a grievance resolution system and so on. The right to privacy by itself is nothing without the right, and the law, to enforce that right. For this, the PDP Bill has to see the light of the day and result in amendments to the Information Technology Act, 2000, as well as the latest set of rules in order to make them transparent.
