Background

In February 2021, the Central government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. While welcoming all social media and OTT platforms to do business in India, the government reiterated that users they have right to criticize, raise questions and seek answers through these platforms. However, such social media platforms would be subject to scrutiny and regulation under the Media Ethics Code, 2021.

The media ethics code was necessitated due to unregulated usage of social media and OTT platforms. Such platforms have become breeding grounds for sharing, circulating misinformation, incorrect information, vicious and disturbing content. India witnessed a disturbing trend of mob violence due to false information being spread online through WhatsApp and other social media platforms. To make social media companies accountable, the Code expressly laid down definitions such as “social media intermediary” and “significant social media intermediary” with registered users above the threshold contained the Code. Besides containing guidelines for putting in place a due diligence mechanism, the Code also lays down a three-tier structure of self-regulation – (i) by publishers of information (ii) by regulatory authorities of such publishers and (iii) by the Central government. 

A key provision is the appointment of grievance/ compliance officers – (i) Chief compliance officer, (ii) Nodal officer and (iii) grievance officer are the different levels of officers to whom complaints / grievances could be addressed to. 

Another important provision in the Code of Ethics places the onus of finding out the “first originator” who publishes scandalous or mischievous content on the social media platforms. The Media ethics Code 2021 has been notified on 25th February 2021. All social media & OTT platforms had to implement the Code within 3 months’ time – by 25th May 2021 when they would come into effect. 

Social media platforms such as Facebook, WhatsApp, Instagram, Twitter, and YouTube would have to comply with the Code as they satisfy the condition of having more than 50 lakh registered users as required by the media ethics code. Entities such as what’s App commenced implementation by appointing a grievance / compliance officer.

Latest

However, on 26th May 2021, on the completion of the 3 month time, when the government sought a status report on the compliance from the social media platforms, WhatsApp instead filed a petition against the Central government in the Delhi High Court.

The WhatsApp petition seeks to make the traceability (of first originator of information) clause under 4(2) unconstitutional and against the fundamental right to privacy. It seeks to prevent the clause from becoming effective. At the core of the WhatsApp petition is Rule 4(2) of the IT Rules 2021.

Rule 4(2) of the Digital Media Ethics Code

Simply put, Rule 4(2) of the Digital Media Ethics Code requires:

• A significant social media intermediary (having a registered user base of 50 lakhs and above) in the nature of a messaging service (such as WhatsApp) to identify the ‘first originator’ of information that is circulated.
• This is required for prevention, detection, investigation, prosecution or punishment of offence related to sovereignty and integrity of India, security of the State, friendly relations with foreign States or incitement of offence relating to the above in relation to rape, sexually explicit material or child sexual abuse. 
• Such disclosure of information may be required by a judicial order passed by a court of competent authority. 
• In complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users.
• If found guilty, the offence shall attract imprisonment for not less than 5 years.      
• No order shall be passed (by a competent authority) to identify a first originator of information where less intrusive measures are effective in identifying such first originator of information. 
• Where the first originator of any information is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of Clause 2 of Rule 4. 

The WhatsApp contention

The main contention of WhatsApp in identifying and disclosing the first originator is that it violates the Supreme Court judgment in the Justice KS Puttaswamy Vs Union of India. In the case, the Apex court ruled that 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.

Quoting this landmark judgment, WhatsApp has stated that requiring messaging apps to trace chats and originators of chats is equivalent to keeping track of every single message shared on WhatsApp. This would break the “end to end encryption” feature contained in WhatsApp and undermines people’s right to privacy. 

End to end encryption or “E2EE” is a technicality by which an information (photos, videos, calls, messages, documents and other information) are technologically secured in such a way that only the person one is communicating with can read or listen to them. Nobody, not even service providers can read or listen to them.

The Government clarification

Consequent to the petition filed by WhatsApp, the Ministry of Electronics & IT, issued a press release and clarified that the requirement of sharing information on first originator would arise only to protect and preserve the sovereignty, integrity, friendly relations with the neighbouring countries or to prevent an offence relating to rape, sexually explicit or child abuse content.

The press release further clarified that information on first originator shall be required only when no other effective remedy exists. The test of proportionality has to be met. Information shall be sought on first originator only as a last resort. Further, such information shall be sought only as per legally sanctioned procedure. 

This way the constitutional rights of every citizen are safeguarded. While reassuring that the Code of ethics will not impact WhatsApp’s functioning in any manner, the government reiterated that no fundamental right (including right to privacy) is absolute. It is subject to reasonable restrictions.  

Debatability of petition

The petition filed by WhatsApp on the last day for implementation seems rather confusing. 

Not long ago, WhatsApp was in the eye of the storm for making it mandatory to all its users to “agree” to its updated privacy policy or completely exit from using WhatsApp. The updated privacy policy expressly stated being one of Facebook owned companies, WhatsApp will share user data “across its family of companies”. This meant that personal information (name, number, email id, financial records, passwords, biometrics, medical history, consumer taste and other related details) which individuals provided at the time of registration to use WhatsApp would be used by FB to further their own business interests. 

The violation of fundamental right of privacy is apparent in this as well. Dichotomy at play. After widespread criticism, the updated privacy policy which was supposed to become effective in February got postponed to 15th May 2021. WhatsApp tweaked its policy to include that by not accepting the policy, users will not have to exit WhatsApp. Instead they may not have access to full functionality of the service. 

The future of social media

While WhatsApp filed a petition, other social media giants like Facebook, Instagram and Twitter are willing still in the implementation process after the deadline. They have expressed willingness to comply after engaging with the government on certain issues. 

Till the High Court takes a call on this issue, it remains to be seen if the right to privacy will continue to be protected by the government as well as social media platforms such as WhatsApp.