In May 2020, the Supreme Court of India refused to consider a plea to link social media accounts with Aadhaar for weeding out fake accounts. The petitioner argued that bogus accounts are being used for proliferation of fake news which becomes the root cause of several riots. It was further added that the fake news is propagated through ghost accounts which not only shapes opinion but also plays a vitiating role in the context of free & fair elections.
Aadhar-Social Media Account Linking is a controversial demand that questions ‘Freedom of Speech and Expression’ and ‘Right to Privacy’ enshrined in the Indian constitution under Article 19 and Article 21 respectively. However, several appeals and petitions were submitted to the Supreme Court and High Courts for linking Aadhaar numbers with social media profiles.
Linking of Aadhaar details with various social media accounts has been a long standing controversy that have raised several questions over one’s freedom of expression, right to privacy and mostly importantly about the effectiveness of the move in curbing fake news. But before we analyse these questions, let us first understand what necessitated the demand of linking social media accounts with Aadhaar details.
The Need for Linking
Facebook, WhatsApp, Twitter and Instagram are the most commonly used social media platforms in India. These social media platforms are being used by the miscreants as a medium for misinformation, disinformation, and fake news along with information weaponization. Fake news and misinformation breaks the fabric of democracy by producing negative narratives. Information weaponization creates unrest in the society and enables terrorist groups to circulate hate and violence in the country.
All these happens so easily because there are no provisions for verifying the identities of the users of these social media platforms. Numerous types of contents are everyday uploaded by the users which are misused by the miscreants, terrorist organizations, pornographers and rouge countries.
Many experts believe that linking Aadhaar details with social media profiles of the users will help to keep track and check the origin of defamatory articles, fake news, anti-national and terror contents and pornographic materials in the online media. Past investigations and surveys reveal that these nefarious activities in the social media platforms are usually done through fake accounts. It is estimated that the number of fake accounts varies between 20-50% of the total users. Linking of Aadhaar details will help in curbing the fake accounts and reduce the total number of users on these platforms. However, a reduction in the number of users affects the stock price of these platforms because it is the user base that determines their valuation. Thus, this becomes one of the prime reasons why user authentication is opposed by the social media platforms.
Security and Privacy of Users
Traditionally, intermediaries have been extremely disinclined to share information of user with government authorities. The anonymity that these social media platforms offers the common people the freedom to express their views that they normally hesitate to. Universally, this has been playing a crucial role in freedom of expression. It provides a gateway to express freely and with the use of encryption, anonymity empowers an individual to public his opinion that they otherwise remain reluctant to speak. The #MeToo movement is a classic example in this regard. The movement highlights that social media platforms are not always misused, rather there are instances where it has been used in the most credible ways. In this movement a large number of women had used anonymous social media accounts for raising their voices. Thus, if Aadhaar or any other government approved identification details are linked to individual’s social media accounts, such type of social movements will be impossible to take place when a large section of rich people and powerful politicians will be involved. The fear of being harassed will pull back the marginalised people from coming to limelight.
The freedom of speech (Article 19) combined with the right to privacy (Article 21) have a contrary impact when accorded to a criminal. Cybercrime victims are often confronted with the dilemma of having to identify the preparators on account of protection they are granted due to these rights. Among several other issues that pops up, a few significant ones are – lack of cooperation of the social media companies, lack of proper mutual legal assistance treaties and the inability to pressurise these social media companies as they are located outside India.
There is truly an urgent need for resolving this long pending issue. However, initiatives taken towards resolving it have been turning towards refuting the freedom of speech as well as privacy of people.
Previous cases like the In Re: Prajwalla Letter case and the case of Tehseen Poonawalla, which dealt with serious issues such as lynching, circulation of rape videos and fake news, prompted the Court to issue directions for dealing with them. This led to draft intermediary rules which included provisions for automated content monitoring & deletion, tighter content removal deadlines and invited governmental suggestions for introduction of message traceability mechanism.
While there is no question about the need for an overhaul of intermediary liabilities, it must not happen at the cost of citizens’ fundamental rights. Linking social media accounts with Aadhaar details or any other identification document for removing anonymity and for positively identifying people, highlights this issue. This results in loss of significant advantage that an individual has in exercising his own right to freedom of speech in online platforms.
Linking Aadhar details to social media profiles confronts multiple challenges. First of all, using of Aadhaar details for private purposes itself has been controversial ever since Section 57 of the Aadhaar Act was stroked down by the Supreme Court. Only banks and a few other regulated entities has been permitted to carry out the provisions of eKYC. Moreover, use of Aadhaar details has been mainly restricted to receiving benefits from government under Section 7 of the Act.
Thus, to legally find a way to permit linking of Aadhaar to social media profiles within the ambit of the verdict of the Supreme Court on Aadhaar is difficult. Even if a method is found, implementation of Aadhar-Social media linking will have several issues which needs to be resolved, most important being the maintenance of privacy of sensitive information in the hands of these company. The social media companies can use the personal data of the citizens to boost the business of e-commerce sites in India. The government needs to come up with a clear redressal mechanism to deal with hacks, misuse and leakage of data. Hence, linking social media profiles with Aadhar details without having a robust mechanism for data protection is like “come bull, do hit me”.
The second challenge remains on how the verification will be carried out by the social media platforms – will the process undergo actual KYC procedure that require offline verification? Given the restrictions, it hardly seems that permission for biometric authentication will be given to the social media companies. Hence, just like mobile wallet companies struggled, social media companies will have to confront similar hurdles while carrying out KYC procedures.
Thirdly, a major question arises as how to deal with the accounts which are not linked. The consequences for these remains unclear currently. The closest comparison which can be taken is with the Supreme Court’s striking down of the provision in connection with concealing banks accounts that were not linked. Notwithstanding, there, the act in connection to the bank accounts were viewed as a deprivation of property, and it remains ambiguous what verdict the Court will pronounce in the context of social media accounts.
Fourthly, if any Indian citizen wants to avoid linking Aadhaar with social media profiles, he would easily be able to do so by creating an account while reporting himself as non-resident of India.
Fifthly, linking of Aadhaar details will jeopardize the democratic rights and independence of the citizens. The social media platforms could be very easily availed by the government authorities as surveillance tools. Additionally, as also mentioned above, voices of smaller and marginalised community will get undermined. It is the advantage of anonymity that helps the people of these sectors to raise their voices in contentious issues as disclosing their own identities might result to harassment and physical violence.
Alternative to Curb Fake News
The government needs to stop relying on linking Aadhaar as one-stop solution for all issues that prevalent in the country. Circulation of fake news, misinformation, disinformation, defamatory articles, censored photos, video clips etc. are not only spread by fake accounts. There are several instances where user used their ‘real account’ proudly for doing such nefarious activities online because of the lack of fear of law and the lack of deterrence. There are even such examples where individuals are hired by powerful people or parties for spreading rumours in the social media. Linking Aadhaar details with social media would be logic-less unless something is been done to track masterminds.
Social media giants have enough information available with them that can point out the origins of these fake news and defamatory articles. Based on information, government can easily track and identify the individuals engaged in spreading fake news and initiate required actions even without linking Aadhaar. It is also possible to trace social media accounts using email linked to their account or phone numbers or IP addresses. Authorities can use these tools for tracing the user and arrests him unless the user comes out to be a sophisticated cybercriminal, which is generally not seen in cases of fake news.
There is indeed a need for policy change for curbing fake news at its source. For that government has much work to do like creating a dedicated legal framework on date protection, paid news, hate speech etc. Moreover, Article 32 and Article 226 of our constitution gives ‘Right to Constitutional Remedies’. Thus, in case of violation of fundamental rights and constitutional rights one can directly approach the court for intervention. Hence, linking of Aadhar with social media accounts will only increase the burden of the courts as to identify which action is lawful and which is not and on what grounds or basis the account of the consumer was banned.