The Supreme Court on Tuesday transferred to itself all cases, related to the linking of social media profiles with any government ID, including Aadhaar and WhatsApp traceability, pending in different high courts to regulate social media misuse. It will also examine whether liability could be fastened on intermediaries like Facebook and WhatsApp to decrypt messages so as to check fake news, hate speech, etc.
A bench comprising justices Deepak Gupta and Aniruddha Bose allowed the transfer of all the petitions filed against Facebook before different high courts of Madras, Mumbai and Madhya Pradesh.
It also posted the petitions for hearing in the last week of January after the government notifies the revised Information Technology Intermediaries Guidelines (Amendment) Rules by January 15, as stated by the ministry of electronics and information technology (MeitY) in its affidavit on Monday.
Attorney general K K Venugopal, appearing for Tamil Nadu, argued that Facebook and WhatsApp should decrypt any information that the government wants for analysis.
He said that Parliament had empowered the government through Section 69 (1) of the Information Technology Act to lawfully intercept, monitor and decrypt information through a computer resource if 'satisfied that it is necessary or expedient to do so in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence or for investigation of any offence'.
The AG said that the government did not want any technical assistance from the intermediary, but 'they will have to give us facilities to access the information, to access the entire counter system in which they are recording'. Solicitor general Tushar Mehta, representing the Centre, said the move to finalise rules for social media is not a ploy to breach privacy of citizens, but is meant to protect national security and sovereignty.
"The government has no intention to invade the privacy of innocents," he said, adding, "Your Lordships have to find a balance between national interest, sovereignty and police investigation with individual privacy."
However, the intermediaries have so far resisted the government’s plea, claiming that they do not have the 'key' to decrypt users’ data, but will cooperate with the authorities.
Senior advocate Mukul Rohatgi, appearing for WhatsApp, said that the social media intermediaries were under no obligation to disclose details of private accounts as this would breach privacy.
However, Justice Bose said that the social intermediaries cannot claim protection under the fundamental rights of 19(1)(a) and (g) - right to free speech and right to practice any profession.