In recent news, the latest norms for social media intermediaries under the New IT Rules 2021 have sparked objections from privacy professionals and legal experts. The Supreme Court (SC) struck down Section 66A of the Information Technology Act in 2015 as it found it as a contravention to both Articles 19 (free speech) and Article 21 (right to life) of the Constitution. This article will discuss the key issues surrounding these new developments.
Suspecting Everyone: Active Hunting and Social Media
Under the New IT Rules 2021, ‘significant social media intermediaries’ are required to use automated tools that proactively track certain words, a practice compared to “active hunting.” Such action runs the risk of criminalising an entire population, as these tracked words could be part of their normal discussions, turning entire citizenry into potential suspects. For instance, tracking words like interfaith marriage or love jihad may lead to unwarranted scrutiny of innocent conversations.
Against Right to Privacy: The Impact on User Security
The rules further stipulate that social media services focusing mainly on messaging should enable the identification of the information’s first originator. This could result in compromising overall security and user privacy, along with contradicting data minimisation principles proposed in the IT Ministry’s Draft Data Protection Bill 2019. Breaching end-to-end encryption for such identification weakens the basic technological framework of most applications and increases the risk of data misuse.
Data Minimisation and Its Challenges
The principle of data minimisation asserts that collected data should not be retained or re-utilised unless absolutely necessary. Regrettably, these rules undermine this principle, and thus open internet principles, and infringe upon the fundamental right to privacy, particularly amidst an absence of robust data protection law. To illustrate, companies might incentivise users to share sensitive personal data for voluntary identity verification, which could then be used to profile and target users.
Right to Privacy: A Fundamental Right
In the landmark K.S. Puttaswamy v. Union of India case in 2017, the SC emphasised that the right to privacy is fundamental and inalienable. Under Article 21, this right protects a person’s life and personal liberty, including their information and personal choices. Despite this, current rules seem to undermine this critical right.
Against Freedom of Expression: The Consequence of Automated Censorship
Automated censorship and surveillance could significantly impede users’ freedom of speech and expression, potentially stifling creativity. Article 19(1)(a) of the Indian constitution guarantees this freedom, yet these new norms may threaten it through over-censorship due to fear of legal repercussions.
Lack of Accountability and Transparency: The Problem with AI Tools
These rules also necessitate that social media uses technology-based measures, such as Artificial Intelligence (AI), to filter out objectionable content like child sexual abuse. In practice, however, these tools often suffer from substantial accuracy issues and can lead to “function creep.” Moreover, biases in AI development can result in discrimination, inaccuracies, and a lack of accountability and transparency.
Gag on Online News Media: Increased Scrutiny and Compliance Costs
The increased scrutiny and compliance costs under these rules could impact free and unhindered news reporting, a critical part of any democratic society. This increased regulation might lead to the gagging of media outlets and discourage unbiased reporting.
