To Trace Or Not To Trace: A Three-Fold Test Could Settle It

Context: With respect to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 framed under the IT Act of 2000, legitimate public order interests will have to be balanced with the reasonableness of rules.

Debates regarding IT Rules, 2021: Data privacy vs national sovereignty and public order

• National sovereignty: The need to protect society from public harm in terms of terrorism and radicalization, misinformation, fake news, sexual misconduct and cyber-crime.
• Data Privacy: are violative of fundamental right to privacy of Significant Messaging Intermediaries (SMI) users, as they compel SMIs to overhaul their data encryption mechanisms.

Three public-policy arguments to steer between privacy and public order

• Privacy as a fundamental right: 2017 Puttaswamy judgment on privacy and the Aadhar judgement provides a legitimate method for deciding the legality of restrictions on fundamental right through the three-fold test meeting the touchstones of legitimacy, lack of arbitrariness and proportionality.
• Striking a balancing between right to privacy and transparency:
  • Switzerland has balanced bank customers’ right of privacy on bank information and legitimate processes of procuring information needed to combat money laundering, terrorism and crime.
  • In Singapore, the Protection from Online Falsehoods and Manipulation Act, 2019, provides for issuance of ‘correction notices’ rather than removals, which is an outcome-based approach.
  • As a matter of process, a transition period was allowed in Germany before introduction of its NetzDG laws.
• Check arbitrary use of criminal proceedings
  • The use of criminal proceedings for the dishonour of cheques against corporate debtors during insolvency proceedings was disparagingly referred to as “civil sheep in criminal wolf’s clothing” by the Supreme Court in Moharanj & Ors. Vs Shah Brothers in 2021.
  • Use of police complaints to ensure compliance with IT Rules could be inconsistent with efforts to decriminalize what are essentially civil matters.

Conclusion: Striking an appropriate balance will burnish India’s credentials as a global leader as we move to take up the mantle of the G20 presidency in 2023.