Explained: Why WhatsApp cannot be banned in India?

WhatsApp, Facebook, Instagram, Twitter cannot be banned, but their legal immunity can be withdrawn, and that is what should bother you.

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Right off the bat, we need to appreciate that moderation of speech (by any means) is a genuine requirement. This is so because it is innate in human nature to behave badly when there is less accountability or traceability.

Further, mass media, by definition reaches all over and has the potential to change public perception about events.

To temper the power of traditional mass media like newspapers, radio stations, and the like were legally obligated to proactively monitor the content they put out on their platforms.

However, when the Internet and the Web were being created in the Silicon Valley in the USA, the same problem as to the filtering of the content put out on the platform presented itself.

However, this time there will be no handful of writers and editors putting out content, but millions or more common people all over the world, pushing out content with little accountability.

The result of this is all too well-known – in addition to a minority of content that is relevant and useful; a ton of useless, irrelevant, provoking content commonly called trolling.

This point is elucidated in a Saturday Night Live sketch titled Internet Comments Talk Show.

Also read: WhatsApp drags Indian Govt to court for rules hitting privacy, tracing first originator

How to proactively monitor content put out by so many users on a fast-enough basis? The only solution was to follow the model of a newspaper with every user as a writer and an extensive army of paid moderators working 24×7.

This was and is, of course, economically unviable and a potential killer of freedom of speech. Thus, the pioneers of the Internet and the governments found a solution.

The solution was that the Internet companies will be considered to be blind to the content being put out on its platform by others unless brought to attention by a person, non-governmental entity, or the government.

Then, the company will take action on the same.

Also read: After Facebook, two other social media platforms nod to ‘comply’ with new norms

This is what legal immunity to information technology intermediaries in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 means.

Quoting Section 79 in The Information Technology Act, 2000, “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.”

There is no denying that the social media is, in the contemporary times and the future, an indispensible and essential part of the society. But there has to be some accountability unless we want the world to turn into Hobbes’ war of all against all.

The Indian government is asking social media companies to do a couple of things and the latter are cooperating on many of the points.

Also read: Facebook says 'Aim to comply' with new IT rules as deadline ends today

One requirement is that offending content, once notified, be removed within a reasonable time period. The social media companies are okay with this and are meeting the requirements of establishing physical offices and persons responsible for round-the-clock availability regarding any offending content.

To do this, the Indian government derives power from Section 69A in The Information Technology Act, 2000. Quoting from this section, “Power to issue directions for blocking for public access of any information through any computer resource”

However, the contentious issue is with the requirement of allowing government organizations to ask social media companies for the “first originator” of any piece of content.

In other words, every message ever sent will be stored with all the profiles it has passed through, so that when a time comes that the Indian government deems it necessary to know who created and dispatched any given message, the social media company can pinpoint to that person.

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The now-prevalent trend of fake news has fuelled the Indian government’s actions to bring order to the chaos for these free-for-all and gratis mass communication systems like WhatsApp, Facebook, Instagram, and Twitter.

To achieve its goal, the government is likely to press into action Sub-section (1) of Section 79 of The Information Technology Act, 2000, “When an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable for such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code”

Now, if the social media companies choose to not comply with the rules, then their legal immunity can be withdrawn and that opens up a whole new world of complexity and expenditure for these for-profit companies with shareholders.

Then, the platform will be considered cognizant, a willing partner and responsible for any offending or illegal content on their platform.

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This tug-of-war between the state and the for-profit companies with users’ privacy and their use and misuse of the technology hanging in the balance will be instrumental and interesting to watch out for.

The question to ask ourselves as a free and possibly indiscriminate user of these social media apps is that what we will do when these companies have their legal immunity withdrawn and take actions to keep themselves on the safe side.

Most probably the users, especially in the contemporary pay-with-attention-not-cash economy, do not care about what happens with the company whose product they are using. They will jump ship to a new shiny app the moment their routines on the app are disrupted.

But this time it may not be possible because the scope will include all apps operating in the nation.

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To be clear, all apps including the well-known ones namely WhatsApp, Facebook, Instagram, Twitter; or the challengers namely Signal, Telegram; or any other app will have to either put in place infrastructure to identify “first originator” or else lose legal immunity.


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