Markandey Katju and Aiman Hashmi-
Justice Markandey Katju is a former Judge, Supreme Court of India, and Ms. Aiman Hashmi, Advocate, law clerk, and legal researcher, Supreme Court of India, Delhi. The views expressed are their own.
These days a lot of controversies have arisen in India over the Information Technology ( Intermediary Guidelines and Digital Media Ethics Code ) Rules, 2021 framed by the Government of India under the Indian Information Technology Act, 2000, as well as the recent police raid into the Delhi office of the IT multinational giant Twitter.
The justification given by the Indian Government for framing these rules was that a lot of harmful material was being disseminated on social media which had ” material risk for harm ” to the public e.g. spreading drug abuse, pornography, terrorism, weapons, and paedophilism, and there was dire need to curtail this.
However, critics of the government are saying that the above justification is only a facade, and the real purpose for making these rules was there had been a lot of criticism of the Government of India lately in the social media ( particularly Twitter ) for its mishandling of the covid crisis, as well as the 3 farmers laws over which there was a long-popular agitation, which is still ongoing, and the government wants to suppress this criticism.
Are these rules legally valid under international law and the Indian Constitution? This is what we propose to examine here.
The concept of national sovereignty had arisen in international law in 1648 after the Treaty of Westphalia in Europe. Under this concept, every national state has absolute sovereignty over its territory, and no other state has a right to interfere with its affairs.
However, it was after the Second World War that international jurists began challenging the absoluteness of this concept, particularly in the light of the horrible atrocities by the Nazis on its own Jewish citizens. Did Westphalian sovereignty give Nazis a legal right to send their own Jewish citizens to gas chambers?
The recent transformation of world order is often depicted as a shift from the Westphalian to a post-Westphalian era, in which claims for absolute national sovereignty are now usually subjected to certain important restrictions under international law. One of these is on the claim of Digital Sovereignty.
In the 1990s there was a rapid emergence of Digital Technology and Digital global networks and platforms like Google, Facebook, Twitter, etc which are now used by hundreds of millions of people worldwide ( except in countries like China where they are prohibited ). Such digital giants ( whose headquarters are mostly based in the Bay Area of California ) are corporates having huge resources, and enjoy an almost quasi-sovereign status. They have an almost worldwide reach and are not restricted to national borders.
At the same time, nation states also enjoy and assert unconstrained hegemonic power for data monitoring and control within their national territory, and rely on the principle of Digital Sovereignty.
Thus a goliath vs goliath situation has unfolded in India.
The 2021 Rules mentioned above have made several drastic modifications to the regulatory framework existing till now under the Indian Information Technology Act, 2000.
A new classification of ‘ Significant Social Media Intermediaries ‘ has been introduced by these new rules, which means intermediaries like Google, Facebook, Twitter and WhatsApp which have over 5 million registered users. These intermediaries are now obliged to create a grievance redressal mechanism by appointing a grievance redressal officer, who has to coordinate with a government official.
The Significant Social Media Intermediaries have to comply with orders and regulations issued by the government to prevent ‘ material risk of harm ‘ and maintain ‘ public order ‘, both vague concepts susceptible to any meaning the government assigns to them. Access must be blocked by the intermediary to any information the government regards objectionable within 36 hours of the government’s order.
The most contentious provision in the new rules is that the messaging platform must give to the government the identity of the first originator of the information on its platform. Non-compliance with the new regulations and the orders issued thereunder may strip the intermediary of his ‘safe harbor’ under section 79 of the Information Technology Act which states.”
An intermediary shall not be liable for any third party information, data or communication link made available or hosted on its platform.” This provision has now been made conditional on compliance with government orders and regulations.
No legitimate aim behind the requirement to disclose the identity of the originator of the information has been mentioned in the new rules, and any procedural safeguard against its abuse is conspicuously absent.
It is submitted with respect, the new rules violate the right to privacy which has been held by the Supreme Court to be included within Article 21 of the Constitution vide K.S.Puttuswami vs Union of India ( see online ). The requirement to give to the government the identity of the originator of the information is like asking a journalist to give the source of his news, something no reputed journalist would do.
So the new rules appear to be invalid both under international law and the Constitution of India.
One strongly suspects they have been made by an embattled government that is facing attacks on several fronts, and feels that the social media too must be muzzled, just as the print and broadcast media has been.