Explained: Should Aadhaar link to social media accounts? The questions before SC

Apurva Vishwanath
In January, the Ministry for Information and Technology had published draft Rules on regulating intermediaries, seeking responses from the public.

From January, the Supreme Court will hear cases seeking the linking of Aadhaar with social media profiles of individuals. It will be the first big legal battle on the right to privacy after the Supreme Court held in a landmark verdict in 2017 that privacy is a fundamental right.

The two significant questions of law that the court will look into are: whether mandatory linking of Aadhaar to social media accounts violates an individual’s right to privacy, and the balance between intermediary liability and free speech.

The context

It was in connection with these cases that the government submitted an affidavit on Monday stating that the “Internet has emerged as a potent tool to cause unimaginable disruption to the democratic polity”, and informing the Supreme Court that it will take another three months to revise and notify “extant rules” for “effective regulation of intermediaries” such as social media platforms.

Intermediaries, as defined by the Information Technology Act, 2000, include telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online market places, and cyber cafes. Section 87 of the IT Act gives power to the central government to frame Rules; currently, Rules framed in 2011 regulate intermediaries.

The cases

Facebook, WhatsApp and Google had appealed for the transfer of such cases to the Supreme Court from the Madras, Bombay and Madhya Pradesh High Courts, where at least four such cases were pending.

The Madras High Court was hearing two writ petitions filed in 2018 by animal rights activist Anthony Clement Rubin and Janani Krishnamurthy for seeking to link Aadhaar of users to their social media accounts, and a direction against intermediaries to provide information to trace individuals. The prayer for linkage to Aadhar was later withdrawn.

In October 2018, Sagar Suryavanshi, an advocate, moved the Bombay High Court seeking a ban on all paid political content online 48 hours before elections. Suryavanshi has withdrawn the case, and informed the High Court that he would join the proceedings before the Supreme Court as an intervener.

In July 2019, advocate Amitabh Gupta move the Madhya Pradesh High Court seeking mandatory KYC of all social media users using Aadhaar and other identity proof.

Facebook argued that these cases involved answering questions related to fundamental rights — specifically the rights to privacy and free speech. If different High Courts heard the cases separately and gave conflicting verdicts, citizens’ fundamental rights could be affected, Facebook argued.

New guidelines on the way

The central government informed the Bench of Justices Deepak Gupta and Aniruddha Bose that fresh guidelines for regulating intermediaries under the IT Act were in the pipeline.

“There are various messages and content spread/shared on the social media, some of which are harmful. Some messages can incite violence. There may be messages which are against the sovereignty and integrity of the country. Social media has today become the source of large amount of pornography. Paedophiles use social media in a big way. Drugs, weapons and other contraband can be sold through the use of platforms run by the intermediaries,” the court said.

In January, the Ministry for Information and Technology had published draft Rules on regulating intermediaries, seeking responses from the public.

Privacy and sovereignty

The Madras High Court had sought an affidavit from V Kamakoti, a computer science professor with IIT Madras, who said he could provide the technology to enable the intermediary to decrypt the encrypted message when necessary. WhatsApp, on the other hand, has submitted that it is impossible for it to trace the creator of the “questionable content” since it has end-to-end encryption.

While the court highlighted that “de-encryption, if available easily, could defeat the fundamental right of privacy and de-encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded”, but at the same time “the sovereignty of the state and the dignity and reputation of an individual are required to be protected”.

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