Adv Shivam Singh & Adv Ashwani Dubey Shed Light On Centre Vs Social Media Giants Faceoff

The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which came into force four days ago on May 25, have sent shockwaves across significant social media outlets operating in India. While Telegram, Facebook, Google, Koo and LinkedIn have complied with the new guidelines, Twitter is yet to fall in line whereas WhatsApp has taken the Centre to court, claiming that the new rules violate the right to privacy. Sharing views on the hoo-ha over the new IT Rules, High Court advocates Shivam Singh and Ashwani Dubey joined Republic Media Network's Executive Editor- Law and Governance - Rhythm Anand Bhardwaj on the latest episode of Legal Eagle. 

On WhatsApp's legal challenge to the Ministry of Electronics & IT, advocate Shivam Singh questioned that if the messaging platform did not challenge the new rules at the immediate outset, then where is the urgency to seek a stay on it now? Significantly, the new IT rules had been notified by the government in February this year providing platforms with a three-month window to comply. Advocate Shivam Singh opined that the new IT rules require WhatsApp to move away from its encryption model while the Facebook-owned platform has challenged that when the IT Act does not ask for traceability then the IT rules asking for it is not permissible. 

Voicing a strong concern over social platforms not complying with the rules laid down despite drawing huge revenues from the country, HC advocate Ashwani Dubey highlighted that the precedent judgement cited by WhatsApp in its petition itself advocates traceability when required for the purpose of intelligence or investigation. 

"The judgement, which is the foundation of WhatsApp by virtue of which it has moved the Delhi HC, itself says that if the government is required for the purpose of intelligence or investigation may seek details... They are challenging under Article 19(2) which itself has put a reasonable restriction on the right to expression. Now the intermediary rules say that when there is a danger to the sovereignty and integrity of the country, they have to provide details. Not against all users. 

These companies are registered outside the country, are making money from the country but are not adhering to the law of the country. I don't think they will get any relief," advocate Dubey said. 

Criticising the move of the Delhi Police to visit Twitter's offices in Delhi, advocate Shivam Singh said that it is important for the government to demonstrate that there is no alternate available mechanism to regulate social media platforms as any kind of prohibition will be a stringent act of regulation. The High Court lawyers also argued that Twitter cannot be accused of suppressing voices as a couple of days ago #BanTwitterIndia was trending on the social media platform. "With regards to whether the self-regulation system is robust enough, I think more work can be done. Facebook came out with an oversight board, Twitter can do that as well," he said. 

Presenting a counter-argument to platforms against the new IT rules, advocate Ashwani Dubey highlighted that in Australia there is an Online Safety Act created with a Commissioner that can demand that social media companies take down harassing, seditious posts whereas in Singapore, the government has developed Media Regulatory Authority to regulate WhatsApp and other social media platforms, giving ministers the authority to direct platforms to put warnings next to posts deemed to be false and in extreme cases take down the posts. 

"The need is that social media is rarely regulated and they are not following the law of the land and that they are not being held accountable. These platforms are creating security vulnerabilities, circulating misinformation and stealing sensitive data. They have started colonising the mind of the youth. These platforms are creating a threat to the sovereignty of the country," advocate Dubey said. 

Twitter seeks amendments in IT rules

Twitter on Thursday stressed that it will strive to comply with the guidelines, it has also sought amendments in the new rules. Expressing commitment towards protecting freedom of speech and privacy, a Twitter spokesperson revealed that the microblogging service plans to talk to the Union government for amending certain clauses of these regulations which restrict a free conversation on the platform. Lamenting the purported use of "intimidation tactics" by the police, it back a collaborative approach to safeguard the interests of the people.

Centre's unsparing response to Twitter

In a scathing response to Twitter's statement over the implementation of the new IT guidelines that came into force on May 25, the Ministry of Electronics and IT on Thursday lambasted the US-based micro-blogging website for attempting to 'dictate terms' in the world's largest democracy - India. Ridiculing Twitter's claims of 'intimidation tactics' by the Delhi Police, the Union Ministry downplayed the statement issued by the micro-blogging site on Thursday as 'totally baseless, false and an attempt to defame India'. In a stern message to the social media platform, the Union Government has said that Twitter needs to 'stop beating around the bush' and comply with laws of the land, asserting that it has no locus in 'dictating' what should India's legal policy framework be.