Facebook had moved the Supreme Court to transfer the cases related to demands for linking of social media profiles of users with Aadhaar number, pending before the high courts of Madras, Bombay and Madhya Pradesh to the Supreme Court for a final decision.

  • Facebook and WhatsApp had objected to Aadhaar linkage saying it would affect the privacy of its users.
  • It said a nine-judge Bench of the Supreme Court had upheld privacy as a fundamental right under Article 21 of the Constitution.
  • A Bench led by Justice Deepak Gupta had sought Tamil Nadu’s response and restrained the Madras High Court from passing any orders for the time being.
  • The Tamil Nadu government in its reply countered Facebook, saying that concerns voiced by the company in the Supreme Court about citizen privacy go against Facebook’s “primary business model” to commercialize users’ data.
Tamil Nadu Govt’s standpoint   ●        There is a need for Aadhaar-social media linking to keep a check on the spread of fake news and anti-national content on platforms like Facebook and Facebook-owned services like WhatsApp. ●        The Tamil Nadu government is seeking Aadhaar-social media linking after two private citizens filed PILs for authentication of identity. The petitioners sought Aadhaar linking to social media profiles due to the rise of hate content, fake news and cyberbullying. ●        In the case of The Blue Whale game, the online suicide challenge that has reportedly claimed hundreds of deaths in countries like Russia and India, the government found it hard to trace the originator of the online content. Facebook’s standpoint   ●        Facebook has been resisting the move to link user profile with Aadhaar as it feels this would violate the privacy policy of the user. ●        Facebook said that it cannot share the 12-digit Aadhaar number on WhatsApp as it is end-to-end encrypted. ●        Facebook wants to transfer the petitions on the Aadhaar-social media linking to the Supreme Court as it feels it would be in the interest of justice. There are also conflicting opinions about this at different High Courts. ●        Aadhaar linking with social media accounts would result in users' messages and posts being traceable. This would end private communications and could also allow the government to use social media platforms as surveillance tools.  
India and Social Media Accountability
  • The Supreme Court of India in its watershed judgment (Shreya Singhal v Union of India) upholds freedom of speech and expression over the internet and struck down Section 66A of the Information Technology Act, 2000 (“IT Act”) as being unconstitutional.
  • The 2015 judgment marks the beginning of a more progressive and liberal understanding of free speech in a constantly evolving media – the internet.
  • On 24 December 2018, the Ministry of Electronics and Information Technology (MeitY) issued the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 which is presently up for public consultation until 31 January 2019.
  • The Draft Amendment Rules seek to replace the extant Information Technology (Intermediaries Guidelines) Rules, 2011 which governs the conduct of ‘intermediaries’ – a term that includes all the IT and ITeS platforms/ aggregators such as network service providers, ISPs, search engines, online payment sites, online marketplaces, etc.
  • The Draft Amendment Rules are being formulated with a view to increasing accountability of social media platforms in order to curb the increasing misuse of such platforms to incite violence, spread disharmony and mislead the public.
  • Intermediaries have so far, been sheltered from direct scrutiny under the safe harbor provisions set out in section 79 of the IT Act.
  • Section 79 exempts intermediaries from liability for any third party information, data or communication link made available or hosted by it provided that the intermediary does not initiate the transmission, select or modify the information or select the recipient of the information.
STATIC Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 Social Media Accountability Key Features of the Rules
  • The Intermediary Guidelines Rules, 2011 require intermediaries to prohibit users from hosting certain content on its platform (e.g. obscene content). The Draft Rules prohibit a new category of information, i.e., content which threatens ‘public health or safety’, and includes the promotion of cigarettes or tobacco products or consumption of intoxicants including alcohol and nicotine.
  • Intermediaries must provide assistance to any government agency within 72 hours. Further, they must enable tracing of the originator of the information on their platform.
  • Intermediaries must deploy technology-based automated tools to identify and remove public access to unlawful information.
  • Further, intermediaries with more than fifty lakh users must incorporate a company in India under the Companies Act, 2013.
Issues with the Rules
  • Intermediaries are required to prohibit the publication of content that threatens public health or safety. This may violate the right to free speech under Article 19(1).
  • Intermediaries with more than fifty lakh users must incorporate a company in India but it remains unclear as to how this number will be calculated.
  • Intermediaries are entities that store or transmit data on behalf of other persons, and include internet or telecom service providers, and online marketplaces. The Information Technology Act was amended in 2008 to provide an exemption to intermediaries from liability for any third party information, among others. Read More Articles: Election Commission Applies Brakes on Social Media NATGRID wants to link social media accounts to central database