Right to privacy is at stake in government, Whatsapp row over fake news

By Ajay Kumar

The term ‘fake news’ has been in the news lately especially in the wake of the Kerala floods. Massive amounts of fake news circulated on the web, including allegedly about the UAE’s offer of aid. Coming on the back of incidents of mob violence incited by fake news spread via WhatsApp, the central government has been attempting to stop the rumour mill by requiring WhatsApp to ensure the traceability of messages so that those who spread fake news and malicious rumours are brought to account.

But this flies in the face of the critical element of such technology, which is end-to-end encryption. The purpose of end-to-end encryption is to ensure that even the owner of the platform cannot intercept messages.

The IT Act provides a safe harbour provision for internet firms. Under the safe harbour provision, firms like Facebook, Twitter and even broadband service providers are intermediaries, and are therefore exempt from liability for the content traded on their platforms. To put it simply, if someone were to download a film from an illegal source via broadband connection, the broadband provider will not be held liable for piracy, but it will be the person downloading the content.

This gets tricky though. To take full advantage of the safe harbour provision, companies need to follow guidelines issued by the IT ministry. This is why the government can block certain websites in India, by issuing a direction to operators to block them from their platforms.

The question, however, is this: do the harms of platforms circulating fake news outweigh the right to a free and unbridled media?

The media has changed over the last few years and social media is now a premier source for the sharing of news. What the government’s policy will do is try and make sure those who spread offensive messages are prosecuted and the messages removed from the platform before they can be shared widely.

The flip side of this is snooping. If end-to-end encryption ends, then the government can easily filter, scan and record one’s activities on social media. For example, a private conversation can suddenly become a part of a bureaucrat’s file at the IT ministry. Further, the government can direct firms to push and publish certain messages.

The use of mobile phones is currently governed by the colonial era Telegraph Act and the Wireless Telegraph Act. Mobile phones, for instance, are licensed in India via General Permissions issued under the Telegraph Act and Wireless Telegraph Act. These laws give the government the exclusive privilege of controlling telegraph and wireless telegraphs. The definitions of a telegraph are so broad that communicating over a distance via hand signals will also count as being a telegraph. The government also has exclusive privilege to control the airwaves and licence spectrum. This is significant power granted to an entity.

Last year, in a landmark judgement, the Supreme Court held that citizens have a fundamental right to privacy. The very thought of a government being able to intercept communications between two persons flies in face of such a right. The government’s attempt to enforce WhatsApp to comply with its demands, including disclosing the source of the message, goes against the fundamental idea of private correspondence.

To put it simply, the breach of such privacy is akin to the government reading letters before it passes them along. It is important to remember that people communicate their most intimate of ideas via these platforms besides sharing news.

Fake news is a real problem, but the solution isn’t intercepting messages. Instead, when actionable intelligence is received that such messages are circulating, the provider may be required to issue a notification that the message is false or inflammatory. If there is a law and order situation, it may make more sense to nullify them by issuing clarifications rather than intercepting the messages.

The government also wants these firms to have a base in India where they can be controlled. This is a reasonable expectation as apps that operate in India should be required to comply with Indian law. But the mode of compliance is what causes the issue. Ending the idea of end-to-end encryption to serve “public order” and breaching the privacy of a billion people cannot be the way forward.

Ajay Kumar is an advocate at the Bombay High Court.