Underlining that the “Internet has emerged as a potent tool to cause unimaginable disruption to the democratic polity”, the Centre Monday informed the Supreme Court it will take another three more months to revise and notify “extant rules” for “effective regulation of intermediaries” such as social media platforms “keeping in view the ever growing threats to individual rights and nation’s integrity, sovereignty, and security”.
Also Monday, the Delhi High Court was told by Internet service provider World Phone Internet Services Pvt Ltd that “unregulated functioning of Facebook Messenger and WhatsApp is a threat to the national security”. Calling it an important issue, Justice Navin Chawla issued notice to the Ministry of Finance, Ministry of Communication and Information Technology, Facebook Inc and WhatsApp Inc. He sought their responses within four weeks on why they should not be subjected to licence fees and security considerations like other ISPs.
In an affidavit to the Supreme Court, the Ministry of Electronics and Information Technology (MeitY), through advocate Rajat Nair, said that during the last few years, there has been an enormous rise in the number of people using the Internet and social media and also an “exponential rise in hate speech, fake news, public order, anti-national activities, defamatory postings, and other unlawful activities using Internet/social media platforms”.
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The Ministry affidavit was in response to the Supreme Court’s query on the status of the changes being contemplated in rules to ensure accountability of intermediaries. It had posed the question when it was hearing a plea by Facebook urging it to transfer to itself certain petitions filed in various High Courts for linking social media accounts to Aadhaar numbers.
Submitting the affidavit, advocate Nair said that the Ministry had sought three more months to complete the entire process.
The government pointed out that there was already a rule on intermediaries, The Information Technology (Intermediaries Guidelines) Rules, 2011, notified on April 13, 2011. It said that “as Internet has emerged as a potent tool to cause unimaginable disruption to the democratic polity, it was felt that the extant rules to be revised for effective regulation of intermediaries keeping in view the ever growing threats to individual rights and nation’s integrity, sovereignty, and security”.
The affidavit stated that the Minister of Electronics & Information Technology, replying to a Calling Attention Motion on ‘misuse of social media platform and propagation of fake news’, had made a statement on the floor of Rajya Sabha on July 26 that the government will initiate a number of measures including amendment to the existing Intermediaries Guidelines Rules, 2011 to make them more liable towards the content that is published, transmitted, etc. on their platform.
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The draft of the revised Information Technology Intermediaries Guidelines (Amendment) Rules, 2018 was published on the Ministry website on December 24, 2018, inviting comments. It said 171 comments were received which were also published for counter-comments.
Following this, various rounds of consultations were held with the different chambers of commerce, associations and social media companies. Besides, inter-ministerial consultations were also held to seek views of other ministries including Ministry of Home Affairs, Ministry of Information and Broadcasting, Ministry of Health and Family Welfare, Ministry of Women and Child Development, Ministry of Commerce on the draft revised rules, the affidavit stated.
It said after collating and analysing all the details that have emerged from stakeholder participation and inter-ministerial consultations, three more months will be required to finalise and notifying the final revised rules in accordance with law.
In Delhi High Court, ISP World Phone Internet Services Pvt Ltd cited a serious threat to national security, alleging that Facebook Messenger and WhatsApp were providing voice and video calling over Internet services without holding telecom licences.
The High Court, which sought responses, listed the matter for January 17 next year. World Phone, through its counsel Sanjoy Ghose, told the court that they have been providing Internet service, including Internet telephone, under a license agreement with the government, but Facebook Messenger and Whatsapp have been doing it illegally.
He argued that in the present licensing regime, Internet telephony is a purely licensed service, permitted only under the UAS/ISP or Unified License granted under Section 4 of the Indian Telegraph Act, 1885.
"Hence, Facebook Messenger and Whatsapp, which provide voice services without holding a telecom licence in India, circumvent the Indian telecom licensing provisions and provide services that are otherwise permitted only under a telecom license.” “Internet Telephony being a licensed service in India, can only be provided by Access and Internet Service Providers under the Unified License and ISP (IT) License,” the plea stated.
It said that the need to bring WhatsApp under the regulatory framework was now more essential given that WhatsApp provided end-to-end encryption.
“With such encryption, even WhatsApp cannot access information transmitted over its network. With this move, now a billion people have access to encrypted messaging. The same is a serious threat to national security,” it said, adding that “with the widespread penetration of mobile phones in the country, it has become all the more imperative to check the operation of Facebook Messenger and WhatsApp.”
The plea stated that there is “increased use of social media, and in particular Facebook Messenger and WhatsApp by various organisations which indulge in anti-national and terrorist activities”.
“Some of the examples of such unregulated activities leading to serious threats are the 26/11 Mumbai terrorist attacks and the Muzaffarnagar riots, Paris terrorist attacks of 13/14 November, 2015 carried out by ISIS,” the plea stated.