THE BLAME GAME
At the heart of the current debate over false news on WhatsApp lie multiple issues of privacy, culpability and liability, all of which will be closely scrutinised in the months ahead. Will the government’s outrage over WhatsApp, for instance, extend into its new data protection bill which is in the works? On May 25 this year, the European Union’s General Data Protection Regulation, among the world’s toughest data protection laws, came into effect. The GDPR’s next big privacy push will be aimed at overthetop messaging (OTT) apps like WhatsApp and Skype. The new rules, it is believed, will treat them like traditional telecom companies and make it tougher for these apps to profile their users. But this may only deepen the problem of inflammatory messaging by shielding the creators and disseminators even better.
Experts say it would be disingenuous to blame WhatsApp for the violence in India because Section 79 of the Information Technology Act does not make the intermediary (in this case the messaging app) liable for third party information or messages sent out by users. “The core issue is that lynchings are a law enforcement issue and not a platform issue. False information is not illegal, breaking the law is,” says Nikhil Pahwa, digital rights activist and founder editor of Medianama, a portal which covers digital and telecom businesses in India.
But Pawan Duggal, Supreme Court advocate and president, Cyberlaw Asia, argues that the existing IT Act predates the advent of social media. “We desperately need new Indiaspecific laws that will tackle challenges thrown up by social media and OTT applications like WhatsApp,” he says.
Experts say government and law enforcement authorities face a dilemma in enforcing the law against messaging and social media platforms. “On the one hand, the platform could claim immunity as it is only an intermediary. On the other, the platform is what provides the opportunity for abuse. These companies also seek protection based on territoriality,” says N.S. Nappinai, a Supreme Court lawyer who specialises in cyber laws.
Awareness that spreading such information could cause harm to life might work as a preventive measure. Also the fact that there are no safe harbours for persons actually disseminating such content. While existing provisions of the Information Technology Act and the IPC are sufficient to deal with such incidents, it is only when the law is seen to be effective that it also acts as a deterrent. “There has to be rational application of the law and its provisions—within the limits that it was intended and not to stifle free speech. Expanding the law too much would result in a witchhunt. While such acts of violence are clearly abhorrent, exercise of punitive action should also be done with caution and against the actual culprits,” says Nappinai. Globally, social media platforms like YouTube and Facebook are coming under increasing pressure to regulate the spread of fake news being disseminated on their platforms and on privacy concerns. On July 11, Facebook was fined £500,000 by the UK information commissioner’s office for failing to protect users’ information in the Cambridge Analytica scandal. On July 8, the Googleowned YouTube announced a $25 million fund to support news organisations and earlier, in March this year, Google announced a $300 million Google News initiative to help media companies with quality journalism.
Experts say the misinformation on WhatsApp is a problem that eludes a silver bullet solution, but it is nevertheless incumbent upon the platform provider to instal safeguards to prevent misuse. WhatsApp has responded with a detailed statement on what it was doing to curtail the spread of misinformation on its platform. These include spotting accounts sending out large volumes of messages and restricting them. The messaging app also announced it would start marking all forwarded messages as ‘Forwarded’. ‘We believe that false news, misinformation and the spread of hoaxes are issues best tackled collectively: by government, civil society and technology companies working together,’ WhatsApp added. That’s one message that needs to go viral.
“We need new India-specific laws that will tackle challenges thrown up by social media and over-thetop (OTT) applications like WhatsApp. Existing cyber laws predate social media and cannot deal with these new challenges” — PAVAN DUGGAL, Supreme Court lawyer, president, Cyberlaw Asia