Microblogging site Twitter recently filed a suit in Karnataka High Court questioning the government’s authority to block accounts on its platform. Government orders have also been challenged on the ground of not being in line with the procedural requirements of Blocking Rules 2009 framed under the Information Technology Act, 2000 (IT Act).
Twitter has millions of account-holders and followers living in different countries. Each country may have its own rules for dealing with the rights and obligations of digital platforms. Such platforms are global – they are not confined to any national boundaries. Thus, blocking tweets on the orders of one government might cause a breach of the rules of another country.
The present case provides the right opportunity to examine the way the legal and governance frameworks for digital economy and society have evolved and the direction they are going in.
The world is fast transforming into a digital society, which is very different from the agricultural-industrial society for which the present legal frameworks have been built.
Data and digital society go beyond national boundaries. They are disconnected from the land, which is core to the concept of nationhood and the current system of national laws.
Strong laws and regulations should be put in place to make social media and businesses classify data into two categories – where a fiduciary duty is owed and where it is not.
Also, the government must step back from treating certain digital media actions as criminal if the same act or behaviour is not criminal otherwise.
It needs to be recognised that a person is neither an island nor her home a castle in the digital age.
Many 'Pain Points'
A long-standing tussle is on between the government and internet platforms relating to the maintenance of the ‘intermediary’ status of internet platforms under Section 79 of the IT Act. Intermediary Guidelines 2021 go beyond the scope of the IT Act and place onerous obligations on social media platforms. Some platforms have not complied with the government’s orders. Ministers have time and again warned such social media companies to either follow the rules or shut shop in India.
There is a never-ending debate about the proposed Personal Data Protection Bill, the government’s right to regulate businesses processing personal data, and the Bill’s proposed expansion to include non-personal data. The government and the Reserve Bank of India (RBI) have been attempting to restrict the storage of data locally and are considering punishing platforms in cases of non-compliance.
These disagreements and disputes have raised significant questions about the government’s authority on security and other considerations and individuals’ fundamental rights.
Digital Society Needs a New Framework
The world is fast transforming into a digital society, which is very different from the agricultural-industrial society for which the present legal and regulatory frameworks have been built over time.
Data is at the centre of such a digital society. All human attributes are being converted into data.
A person perhaps lives more in data form than in physical form today. Artificial or machine intelligence is increasingly supplementing and supplanting natural intelligence to process datasets, including of humans, to produce goods, services and assets.
Data is more like electrons inside the nucleus of a basic element. While basic elements can be classified, electrons are not so separately identifiable or classifiable. Likewise, it is impossible to classify all human data as exclusively personal. Moreover, datasets relating to a specific person need to be processed for producing customised goods and services. For example, an individual’s bank account number may be construed as personal, but banking and e-commerce have to use the same to complete related transactions.
Data and, consequently, the digital society, do not respect national boundaries. They are disconnected from the land, which is core to the concept of nationhood and the current system of national laws.
In this context, the new emerging digital society requires a very different framework for the rule of law.
Building a Digital State, Not a Police State
For institutionalising the transition to a digital society, the government must focus on getting the data and digital society governance framework right.
The collection of statistics should be modernised in order to gather and organise requisite public data digitally. Private businesses and social media should be allowed to collect all the data they need subject only to the consent of the concerned persons.
Technically, strong laws and regulations should be put in place to make social media and businesses classify data into two broad categories – where a fiduciary duty is owed and where it is not.
Contract and other laws should be updated to make sure that businesses use data while ensuring non-violation of fiduciary responsibility. Violations thereof must be judicially punishable, and compensation should be given to affected persons.
The government must step back from treating certain digital media actions as criminal if the same act or behaviour is not criminal otherwise. Section 66A of the IT Act (since declared unconstitutional by the Supreme Court) made sending information that is ‘grossly offensive’ or which ‘causes inconvenience’ punishable. These are not criminal offences otherwise.
Section 69A of the IT Act, which authorises the government to block content on digital media, is excessive and interferes with freedom of expression and the right to carry on business and profession. Rule 9 (emergency process) of Blocking Rules has made the blocking process wholly arbitrary and devoid of any effective judicial check. Guidelines framed under Section 87 of the IT Act relating to maintenance of intermediary status under Section 79 of the Act also suffer from the same excessiveness.
There must be a thorough review of the IT Act, rules made thereunder and other laws to avoid such loose criminalisation of online behaviour. The government’s undue expansion of its authority to interfere in digital economy and society also needs to be checked. All these require a thorough re-examination and reformulation into a digital society-appropriate legislative approach.
No Person Is an Island in a Digital Society
It needs to be recognised that a person is neither an island nor her home a castle in the digital age. In his digital avatar, a person becomes part of numerous digital groups, intersecting concentrating circles. Emerging digital technologies are likely to usher in a decentralised internet (Web-3) and exclusive personal data wallets (Web-5). The government should initiate steps to design appropriate legal and regulatory frameworks for the same.
The state is framing numerous digital society-related laws and rules, but it has largely exempted itself from the rigours thereof (several provisions in the draft data protection law are a case in point) and has forced businesses to deliver data to its agencies.
The rule of law and governance system must continue to protect fundamental rights, and ordinary civil law should be able to decide disputes over the violation of civil rights.
It will be much better if governments focus on building laws and rules that promote the growth of digital society and businesses, protect fundamental rights, and, at the same time, ensure the security and well-being of all.
(The author is economic and fiscal policy advisor, SUBHANJALI, former Finance & Economic Affairs Secretary, and author of 'The $10 Trillion Dream'. This is an opinion article and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)