Internet Intermediaries
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
Issue Date : 25th February 2021
Complete Document : G.S.R . 139 (E) - link
Bone of Contention : Section 4(2) - Intermediaries to Trace out and identify first originator of message
Whatsapp (subsidiary to Facebook) moves to Delhi High Court challenging the Traceability clause 4(2) of the Intermediary Guidelines 2021 as it violates Fundamental Right to privacy under A21 of Constitution which was reaffirmed by 9 Judge Bench in K.Puttaswamy Vs UoI (2017) 10 SCC 1.
Case Number :
Traceability - what is Traceability ?
- Would force companies to collect & store WHO SAID WHAT and WHO SHARED WHAT for billions of messages shared over platform.
- Collection of large volume of Data - Solely for purpose of law enforcement agency.
- Enabling first identification would puts end-to-end encryption and its benefits at risk in
- Innocent get caught in investigation or even land in Jail for sharing content on platform ( First person to share a foreign originated content will make that person first originator in India )
- Threat of anything would be traceable to a individual will take away people privacy & would be chilling effect and violation of free expression and human right ( George Orwell 1984 )
- Violation of Section 79 of Information Technology Act 2000 ( Exemption of liability of Intermediaries in certain cases - intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him )
What does Intermediary do?
- (As per Section 79(2)(a) of Information Technology Act 2000.)
- Intermediary is limited to providing access to a communication system, over which information made available by third parties is transmitted or temporarily stored or hosted.
- Upon receiving actual knowledge or being notified by appropriate government, data or communication residing in or connected to a computer resource controlled by the intermediary is being used for unlawful act, the intermediary has to expeditiously remove/disable access without vitiating the evidence. ( Section 79(3)(b) IT Act 2000 )
- Further court order/ notice of appropriate government agency MUST STRICTLY conform to subject-matter laid down in A19(2) of Constitution.
- Unlawful activities beyond what is laid down in A19(2) of Constitution obviously cannot form any part of section 79 of IT Act 2000. ( Shreya Singhal vs Union of India (2015) 5 SCC 1 )
What does Intermediary NOT do?
- (As per Section 79(2)(b) of Information Technology Act 2000.)
- Initiate the transmission
- select the receiver of the transmission
- select or modify the information contained in the transmission.
