Opinion

Ticked off: Cracking down on WhatsApp group administrators is bad policy

Curbing speech that incites violence is a valid concern but the government needs a better understanding of technology in order to develop clear policy.

In April 2016, two state governments issued directives seeking to regulate communication on WhatsApp, an internet-based instant messaging application used by more than 70 million people in India, largely on their mobile phones.

With increasing internet shutdowns, banning of mobile telephony and arrests for online content, it is not surprising that the government has sought to regulate this mode of communication.

Much like shutdowns, these directives pose a severe threat to the freedom of speech enjoyed by users online and are in clear violation of existing legal precedents.

Government directives

The district magistrate of Kupwara district of Jammu & Kashmir mandated the administrators of “WhatsApp news groups” and “social media news agencies” to register their groups at the District Social Media Centre through a circular issued on April 18, 2016.

It designated an informatics officer to "keep vigil” on the groups and placed the liability on group administrators for any "irresponsible remarks/deals".

In the same month, news reports indicated, the Jharkhand government issued an advisory for administrators of all social media groups to remove persons who share “incorrect/misleading information, antisocial tirade or anything seditious in nature” and report the same. A failure to report such information would land both the violator and the group administrator in jail.

These directives are inconsistent with the right to freedom of speech and expression as interpreted by the Supreme Court in Shreya Singhal v Union of India in March 2015, as per which any law restricting the freedom of speech is valid only if it is proximately related to the eight permitted restrictions in Article 19(2). In this case, the apex court struck down section 66A of the Information Technology Act for its chilling effect on speech for its “vague” and “over-broad” restriction on speech.

The Kashmir and Jharkhand directives prohibit conduct that is “irresponsible” and “incorrect/misleading or antisocial” respectively without referring to any legal provisions. The terms “antisocial” and “irresponsible” may encompass a range of activities and do not clearly elucidate what exactly is prohibited content. Further, directing WhatsApp administrators to remove individuals who post such content may result in self censorship of content by individuals.

The apex court had held that restrictions in the interest of public order are justified only when advocacy reaches the level of incitement. However, both these directives ignore these standards set out in Shreya Singhal. By burdening the WhatsApp administrators with responsibility to vet content on their groups on the basis of vague guidelines, the directives pave the way for arbitrary censorship and chilling effect, which could lead to the suppression of legal and legitimate content.

Arresting administrators

These directives come in the wake of a series of arrests in India for content circulated on WhatsApp. From June 2015 to June 2016, there were more than 20 arrests of WhatsApp users under various sections of the Indian penal code and IT Act. Particularly worrying incidents involved arrests of WhatsApp administrators even when they had not posted the allegedly inflammatory or defamatory content.

In August 2015, the Chattisgarh police arrested a WhatsApp group administrator for a video posted on the group by another member under section 153A, 153B and Section 504 of the penal code as well as the IT Act. In October 2015, police in the Latur district of Maharashtra arrested a WhatsApp group administrator and three others for content posted on the group.

Despite criticism for these arrests, law enforcement authorities continued to register cases against WhatsApp administrators. In May 2016, the Jharkhand police arrested one person for posting allegedly inflammatory content on a WhatsApp group and a case was also registered against the WhatsApp administrator.

The police stated that they would be “verifying if the administrator took any steps to ensure that the message was not circulated further”.

Three problems

The directives and arrests making the administrator responsible for posting of content on the group are problematic for a number of reasons.

First, it burdens private persons with the responsibility of deciding between legal and illegal content which may lead to overbroad restrictions and extreme censorship. Private parties do not have the legal knowledge or resources to subjectively determine the legitimacy of content, which is why Section 79 of the IT Act was read down in Shreya Singhal to prevent "takedowns" or removal of content on orders of intermediaries alone. Therefore, now placing this responsibility on WhatsApp administrators lends open the content to overbroad restrictions by administrators who may delete people from groups or threaten to complain against content that is legitimate, erring on the side of caution.

Second, the WhatsApp application is not designed in a manner to give WhatsApp group administrators’ editorial powers apart from the power to remove or add participants. They have no power to edit the content before it is posted. Further, if an existing administrator leaves the group the next administrator is randomly assigned by WhatsApp. As a result, a person may become the administrator without choosing to or even realising that they have become the administrator.

Third, it remains unclear how the WhatsApp administrator is being made liable. If the administrator is being considered liable for aiding the transmission of the messages by virtue of allowing participation in the group then he or she would also fall within the definition of an intermediary. By being an intermediary he or she attracts the safe harbour protection under Section 79. The apex court in Shreya Singhal directed that an intermediary need only take action on notification of illegality through a court or an executive order. In the absence of such orders the intermediary is protected from liability which should also extend to administrators of WhatsApp groups. Any such characterisation has the potential to impact various platforms like Hike messenger or Google docs or other shared or common group services.

Government directives and unclear policy regarding messaging applications like WhatsApp can undermine the freedom of speech and expression. These directives also ignore the clear mandate laid down by the apex court in Shreya Singhal on various counts. Curbing speech that incites violence is a valid concern. However, the government needs a better understanding of technology in order to develop clear, precise and more effective policies. The government and platforms like WhatsApp ought to engage on these policy matters to help carve out least restrictive measures in consonance with the law.

Parul Sharma is an Analyst at the Centre for Communication Governance at National Law University Delhi.

We welcome your comments at letters@scroll.in.
Sponsored Content BY 

Changing the conversation around mental health in rural India

Insights that emerged from discussions around mental health at a village this World Mental Health Day.

Questioning is the art of learning. For an illness as debilitating as depression, asking the right questions is an important step in social acceptance and understanding. How do I open-up about my depression to my parents? Can meditation be counted as a treatment for depression? Should heartbreak be considered as a trigger for deep depression? These were some of the questions addressed by a panel consisting of the trustees and the founder of The Live Love Lough Foundation (TLLLF), a platform that seeks to champion the cause of mental health. The panel discussion was a part of an event organised by TLLLF to commemorate World Mental Health Day.

According to a National Mental Health Survey of India 2015-16, conducted by the National Institute of Mental Health and Neurosciences (NIMHANS), common mental disorders including depression, anxiety disorders and substance use disorders affect nearly 10% of the population, with 1 in 20 people in India suffering from depression. The survey reported a huge treatment gap, a problem that is spread far and wide across urban and rural parts of the country.

On 10th of October, trustees of the foundation, Anna Chandy, Dr. Shyam Bhat and Nina Nair, along with its founder, Deepika Padukone, made a visit to a community health project centre in Devangere, Karnataka. The project, started by The Association of People with Disability (APD) in 2010, got a much-needed boost after partnering with TLLLF 2 years ago, helping them reach 819 people suffering from mental illnesses and spreading its program to 6 Taluks, making a difference at a larger scale.

Play

During the visit, the TLLLF team met patients and their families to gain insights into the program’s effectiveness and impact. Basavaraja, a beneficiary of the program, spoke about the issues he faced because of his illness. He shared how people used to call him mad and would threaten to beat him up. Other patients expressed their difficulty in getting access to medical aid for which they had to travel to the next biggest city, Shivmoga which is about 2 hours away from Davangere. A marked difference from when TLLLF joined the project two years ago was the level of openness and awareness present amongst the villagers. Individuals and families were more expressive about their issues and challenges leading to a more evolved and helpful conversation.

The process of de-stigmatizing mental illnesses in a community and providing treatment to those who are suffering requires a strong nexus of partners to make progress in a holistic manner. Initially, getting different stakeholders together was difficult because of the lack of awareness and resources in the field of mental healthcare. But the project found its footing once it established a network of support from NIMHANS doctors who treated the patients at health camps, Primary Healthcare Centre doctors and the ASHA workers. On their visit, the TLLLF team along with APD and the project partners discussed the impact that was made by the program. Were beneficiaries able to access the free psychiatric drugs? Did the program help in reducing the distance patients had to travel to get treatment? During these discussions, the TLLLF team observed that even amongst the partners, there was an increased sense of support and responsiveness towards mental health aid.

The next leg of the visit took the TLLLF team to the village of Bilichodu where they met a support group that included 15 patients and caregivers. Ujjala Padukone, Deepika Padukone’s mother, being a caregiver herself, was also present in the discussion to share her experiences with the group and encouraged others to share their stories and concerns about their family members. While the discussion revolved around the importance of opening up and seeking help, the team brought about a forward-looking attitude within the group by discussing future possibilities in employment and livelihood options available for the patients.

As the TLLLF team honoured World Mental Health day, 2017 by visiting families, engaging with support groups and reviewing the successes and the challenges in rural mental healthcare, they noticed how the conversation, that was once difficult to start, now had characteristics of support, openness and a positive outlook towards the future. To continue this momentum, the organisation charted out the next steps that will further enrich the dialogue surrounding mental health, in both urban and rural areas. The steps include increasing research on mental health, enhancing the role of social media to drive awareness and decrease stigma and expanding their current programs. To know more, see here.

This article was produced by the Scroll marketing team on behalf of The Live Love Laugh Foundation and not by the Scroll editorial team.