POLITICAL MISINFORMATION IS A PROBLEM. BUT ASKING WHATSAPP TO RISK USER PRIVACY IS THE WRONG SOLUTION

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THE CONTEXT: With elections around the corner, addressing political misinformation will understandably remain a policy priority. However, message traceability under the IT Rules, 2021, in the name of preserving election integrity, is a rising concern related to the issue of privacy.

MORE ON THE NEWS:

• The central government plans to rely on Rule 4(2) of the 2021 Information Technology Intermediary Guidelines to counter political deep fakes.
• A large part of regulation will be towards the intermediaries messaging services like WhatsApp, social media platforms like Facebook and video services like YouTube that mediate the relationship between users and online information.
• The Information Technology Amendment Rules of 2023 grant the union government the authority to remove any online content pertaining to its business that it deems to be false or misleading.
• Under these rules, social media platforms and intermediaries will be deprived of the protection of the safe harbour principle if they fail to comply with government orders.
• The use of vague words like “in respect of any business” raises concerns over its chilling effect on the right to freedom of speech and expression and right to privacy.

INFORMATION TECHNOLOGY INTERMEDIARY GUIDELINES 2021

• These rules have been passed under the Information Technology Act, 2000 and supersede the previously enacted Information Technology (Intermediary Guidelines) Rules 2011.
• Broadly, the IT Rules (2021) mandate social media platforms to exercise greater diligence with respect to the content on their platforms.
• They are required to establish a grievance redressal mechanism and remove unlawful and unfitting content within stipulated time frames.
• The rules stress the point that online content publishers and social media intermediaries should follow the Constitution of the country and subject themselves to domestic laws.

RULE 4(2) OF THE 2021 INFORMATION TECHNOLOGY INTERMEDIARY GUIDELINES

• The rule demands that all significant social media messaging entities must have the capability to identify the “first originator of the information” on their platform.
• Originator requests can then be invoked either under a court order or by the government using its powers to intercept, monitor or decrypt information.
• The stated purposes under Rule 4(2) are to aid in the prevention and investigation of certain types of serious offences. This includes threats to India’s sovereignty, security of the state, public order and sexual offences with imprisonment of over five years.

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) AMENDMENT RULES 2023 

• Ministry of Electronics and IT (MeitY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 to amend the IT Rules 2021.
• This amendment authorises the central government to designate a “fact check unit” to identify “fake or false or misleading” information in respect of “any business of the central government.”
• The flagged content must be removed by all intermediaries. These intermediaries include internet service providers (ISPs) and file hosting companies as well.
• If any intermediary fails to comply, they will be at risk of losing protections guaranteed by “Section 79 of the IT Act, 2000”. Section 79 of the IT Act, 2000 exempt intermediaries of liability for content posted by its users.

ISSUES ARISING OUT OF REGULATION

• Ample scope of misinterpretation: The listed ground for maintenance of public order leaves ample scope for misinterpretation by courts and the government. In this case, tracing encrypted messages can be used for varied purposes and is prone to misuse and can be an excessive intrusion.
• Issue with privacy: The provision is primarily meant to target end-to-end encrypted platforms though stated on reasonable grounds but there are issues of implementation. This tends to compromise the privacy of all messaging users in the hope of being able to penalise few. Also, according to the experts, traceability is also unlikely to serve its assigned purpose.
• Don’t define the first originator: The IT Rules, 2021 does not define the “first originator” of a message and is prone to be misinterpreted. For instance, a person who copies and pastes an existing message instead of using the forwarding function may become a new originator. Unsuspecting users would come under the fold of this provision, while real culprits can easily evade it by spoofing the identity of another user.
• Issue of fake news: Social and digital media have been found to amplify and accelerate the diffusion of misinformation, providing tools for propaganda at an unprecedented scale. Whether used voluntarily or maliciously, deep fakes in the electoral context run the risk of misleading users and influencing their actions.
• As a tool of polarisation: Misinformation has become instrument for political parties that is utilized to promote polarization. Therefore, this mechanics of political misinformation and its connections with public opinion formation is a vital challenge for democracy.

THE WAY FORWARD

• Need to implement standard practice: There is a need for implementation of standard practice for curbing fake news by bringing comprehensive parliamentary legislation. A lawfully enacted statute would have demanded consideration of less restrictive alternatives to removing misinformation.
• Steps by intermediaries: Intermediaries need to come forward and adopt self-regulatory measures to prevent the spread of fake news and misinformation. This can include setting up internal committees to monitor content and fact-checking websites to ensure accuracy to prevent misinformation.
• Collaborative Approach: There is a need to develop a concentrated and a collaborative approach by taking into the concerns of stakeholders like the government, intermediaries, and civil society organizations. This can include setting up a joint task force to identify and remove false information and promoting media literacy among the public.
• Free and fair election: It is high time that to ensure that the voting is not influenced but people need to vote with own preferences without any influence or bias. For these, measures need to be taken for effective use of social media in elections without any violation of individual rights.
• Ensuring privacy: The right to privacy is protected as an intrinsic part of the right to life and personal liberty underArticle 21.  It is a sensitive issue and need to be dealt with keeping in the interest of all the stakeholders with an independent and effective oversight mechanism.

THE CONCLUSION:

Though, high quality information and curb on misinformation is critical for the functioning of democracy but censorship in the name of fact checking undermines the democratic principles. Hence, a comprehensive guideline is necessary to put in effect to address both the issue of misinformation and user’s privacy.

PREVIOUS YEAR QUESTIONS

Q.1 Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy. (2017)

Q.2 “Recent amendments to the Right to Information Act will have a profound impact on the autonomy and independence of the Information Commission”. Discuss. (2020)

MAINS PRACTICE QUESTION

Q.1 The use of social media as an instrument for polarisation is increasingly being used by political parties. Discuss the impacts of misinformation and fake news on the integrity of the electoral process.

SOURCE: https://indianexpress.com/article/opinion/editorials/remedy-worse-than-malaise-9002600/