New Intermediary Guidelines… Legitimate and Well within the rights of the Government

[This is in continuation of the Previous Article]

Some times “Experts” also go wrong. Particularly when they look at every Government notification with the colored glasses borrowed from the Political opponents. Today’s Economic Times highlights  “Plan to tweak IT rules may widen rift between govt, social media companies” and quotes many experts to support the headline. The ET Bureau credits the article to two journalists Surabhi Agarwal, Megha Mandavia but makes extensive quotes from several experts to say that the recent draft Guidelines under Section 79 released for public comments by  MEITY will widen the rift between the Social Media Companies and the Government.

Probably, it is not the Social Media Companies themselves but the Indian media which is painting a scary picture whenever the Government wants to do something good for the society. The media has not come to terms with the Modi Government which unlike the non performing Government of UPA is rolling out one decision after another in quick succession unnerving the political opponents and the media which supports them for their own vested interests.

The same media cried from the roof tops that the draft bill on Personal Data Protection which advocated “Data Localization” will have negative effect on the industry. But today we find that Ctrls plans to invest Rs 2000 crores in new Tier-4 Data Centers in Hyderabad, Chennai and Mumbai, to expand their current infrastructure. Even Microsoft and  Amazon are reportedly expanding their data center infrastructure in India. The Market based industry will therefore look at the economic benefits and adapt to the changing requirements though some journalists in India keep raising their voices against such developmental measures to nurture their own constituencies.

The WhatsApp and other social media companies will also adapt to the changing needs since they realize that Modi Government does not budge for such arm twisting tactics executed through the pliant media. The conclusion drawn by ET therefore is not correct. We soon will have  WhatsApp India, FaceBook India and Twitter India to start operating from locations within the country not only subjecting themselves to the Indian laws but also creating new employment and business opportunities in the eco system. There will be some negotiations between the Government and these companies not only on the regulations but also on taxation and other matters and these are business negotiations that happen all the time between MNC s and the local Government. Despite the strict  “Local Partnership only” policies of the Gulf countries, most international companies have set up shop there. Similarly, the foreign Social media owners will also find a way to operate in India. Hence there will be “No Rift” and even if it arises, it is the right of our Government to do what is good for our citizens and it should not yield to the media pressure.

There will be the community of politician advocates who raise the bogey of “Constitution” and try to make the Supreme Court dictate terms with the Governance of the day. But I think the Court will refuse to be made a pawn in the hands of the politicians working for building their 2019 election campaigns through the Supreme Court.

What Experts Say and Why they are wrong

In many instances, experts are misquoted by journalists who publish quotes in parts and out of context to derive their own meanings. Hence all the quotes attributed to the experts in the article may not be true. However, for the sake of clarity to the public we need to comment on these attributed quotes and record our views.

Quote 1: removing content within 24 hours for reasons such as maintaining public order or defamation may be deemed as infringing upon freedom of expression and invite legal scrutiny.

Comment: This comment refers to rule 8 (proposed) which states as follows.

The intermediary upon receiving actual knowledge in the form of a court order, or on being notified by the appropriate Government or its agency under section 79(3)(b) of Act shall remove or disable access to that unlawful acts relatable to Article 19(2) of the Constitution of India such as

in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, on its computer resource without vitiating the evidence in any manner,

as far as possible immediately, but in no case later than twenty-four hours in accordance with sub-rule (6) of Rule 3.

Further the intermediary shall preserve such information and associated records for at least ninety days one hundred and eighty days for investigation purposes, or for such longer period as may be required by the court or by government agencies who are lawfully authorised.

It is clear from the above that the removal of content only arises when it is lawful and in tune with the constitutional rights. Hence there is no infringement of the freedom of speech. Legal scrutiny is possible because celebrity advocates may move the Court and the Court may be obliged to admit the petitions. But it is unlikely that an honest Court will interfere in such routine rules. Such interference itself will be unconstitutional.

Quote 2: “There is vagueness of rules. They (meaning tech companies including cab aggregators, e-commerce companies, hotel aggregators etc)  don’t know whether they  are supposed to help intercept or provide a backdoor…”

Law remains vague as long as tech companies fail to either understand themselves or consult an appropriate person for clarification. Law Can never be a “Check list” which a clerk can tick boxes as some tech companies desire.

Vagueness therefore is inherent in any law and it is the responsibility of the judiciary to clarify when required.

(In fact, we may recall that Justice Chelmeshwar in his part of the judgement on Privacy went along to say that even what is written or not written in the Constitution is not sacrosanct and the Court has a right to read words and meanings into the law. I admit that I disagree with this view and also hold the Court inconsistent since the same Judges refused to read down Section 66A and went about scrapping it. But his words are a judge’s view on the sanctity of the written law).

Quote 3: Rule 9,  mandates companies to “deploy technology based automated tools” for removing “access to unlawful information or content,” ….”it may be against the Constitution”

Comment: I recall the landmark Yahoo Nazi Memorabalia case in which the French Court ruled that Yahoo shall block French web users from its auction sites which sell Nazi memorabilia using appropriate technical measures failing which they have to pay a daily fine of 100,000 francs.

During the trial, Yahoo!’s lawyers argued that blocking the site from French web surfers would be technically impossible. “The internet has no borders, and there is no effective means of preventing its users from travelling where they like”…they said.

In  its ruling, the Paris court said that it is technically possible for Yahoo! France, the company’s local subsidiary, to block at least 90% of French users from the sites in question and ordered Yahoo! to find ways to block French users from its Nazi auction sites.

The arguments that there is technical difficulty and we would not do what the Indian law makers desire is a rogue response which should be politely brushed aside.

Quote 3: WhatsApp can  refuse to build technology that will trace messages, leading to a “prolonged tussle” with the government.

Comment: The requirement of the Government under Section 79 to track “Fake News” as a crime after its detection is only for tracing the origin of the message and hence may not need decryption. The decryption would be to prevent offensive messages being circulated, which is under Section 69 of ITA 2000. In the end-to-end encryption originating from the user’s device there is some apparent logic to the argument that WhatsApp may not be able to decrypt.

However, since the encryption algorithm is provided by WhatsApp and it has all the details of the user’s mobile at the time of installation, it is difficult to believe that it cannot recreate the decryption key or is already not storing a copy of the decryption key under its control or cannot do so if it wishes to do.

I therefore donot buy the argument that it is not possible to decrypt the message though I reiterate that the Government has not so far put up this demand as a blanket requirement. Under Section 69, it is only when the competent authority has reasons to ask for the information that the power would be exercised.

I presume that WhatsApp is already under amicable discussion with the Government. On the other hand the problem could be more with Google which has been hiding the e-mail sender’s IP address under the false impression that it is required for the protection of privacy and refusing the information even when the recipient of the message himself is demanding the information. This is an example of deliberate attempt not to cooperate with the law enforcement authorities which has forced the Government of legal measures to drag the foreign companies into the Indian jurisdiction.

In summary I welcome the Government move and agree with some of the experts who have stated that this could result in better tax compliance by the international agencies. There is in my opinion no legal hassle and it is extremely unlikely that the Supreme Court will even admit a petition to block the Government notification if it is finalized on the terms now indicated.

Naavi

Previous Articles:

Shreya Singhal is Back again!

New Intermediary Guidelines… Legitimate and Well within the rights of the Government: 
Proactive technology tools to identify violation..new intermediary rules: 
New Intermediary Guidelines.. Intermediaries need to have Indian Subsidiaries..: 
Intermediary Guidelines.. Who is and who is not an intermediary?: 
Draft Intermediary Guidelines 2018… Public Comments invited:
Copy of the guidelines: 

P.S: The last date for submission of comments extended upto 31st January 2019. The comments would be put up on the website on 4th February and counter comments accepted upto 14th February 2019… http://meity.gov.in/writereaddata/files/Extention_Guidelines_2018.pdf