Tussle between government and social media Platforms over the new information Rules 2021

BACKGROUND

New rules called IT(Intermediary guidelines and Digital Media Ethics Code) were notified on Feb 25, 2021. The 2021 Rules replace the IT(Intermediary Guidelines) Rules, 2011. Social Media intermediaries were given a 3 month period to comply with the new rules.

Govt. on May 26th issued a fresh notice to all social media intermediaries seeking details on the status of compliance with the new rules.

While companies like Google, Whatsapp, Facebook, Telegram have shared details with the Ministry of electronics and IT as per the requirement of the new norms. Twitter sought an extension of the compliance window. Whatsapp also filed a case in the Delhi High Court against the govt. On grounds that the new rules violated customer privacy

WHAT ARE THE RULES

Due diligence by intermediaries:   Intermediaries include internet service providers, online marketplace and social media platforms . The due diligence to be observed by intermediaries include informing users about rules and regulations, privacy policy and terms and conditions for usage of its service ; and blocking access to unlawful information within 36 hrs upon an order from the Court and the government. They are also required to report cyber security incidents and share related information with the Indian Computer Emergency Response Team.

Significant Social Media Intermediaries : Social media intermediaries with registered users in India above a threshold will be classified as Significant Social Media Intermediary. Additional due diligence to be observed by these include (a) appointing a Chief Compliance Officer to ensure compliance with the IT Act and the Rules. (b) appointing a nodal contact officer residing in India © publishing monthly compliance report.

Intermediaries which provide messaging as a primary service must enable the identification of the first originator of the information on its platform. The originator must be disclosed if required by an order from the court or the govt. Such order will be passed for specified purposes including investigation of offences related to sovereignty and security of the State, public order or sexual violence. No such order will be passed if less intrusive means are effective in identifying the originator of the information.

Code of Ethics for Digital Media Publishers:   It is to be observed by publishers of digital media including (a) news and current affairs content providers and (b) OTT platforms.

For (a) type following existing code will apply (i) norms of journalistic conduct formulated by Press Council of India and (ii) program code under Cable Television Networks Regulation Act, 1995.

For (b) type i.e OTT platforms, the requirements  include (i) classifying content in age-appropriate categories (ii) implementing an age verification mechanism for access to adult content and access control measures such as parental control and (iii) improving accessibility of content for disabled persons.

The rules require the intermediaries and digital media publishers to provide for a grievance redressal mechanism .

Grievance Redressal:  The rules require intermediaries to designate a grievance officer to address complaints against violation of the rule. Complaint must be acknowledged within 24 hrs and disposed of within 15 days.

In case of digital media publishers , a   3-tier grievance redressal mechanism wil be in 3 place for dealing with complaints regarding content

 (a) a grievance redressal officer based in India

(b) self-regulation by the self-regulating bodies of the publishers

© Oversight mechanism by the central government -Ministry of Information and Broadcasting will establish an Inter-Departmental Committee to hear grievances not addressed by self-regulatory bodies and also oversee adherence to the Code of Ethics. 

A charter for the self-regulating bodies to be formulated by the Ministry of Information and Broadcasting.

Blocking of content : The Secretary, Ministry of Information and Broadcasting may pass an interim order for blocking such content in case of emergency. Final order will be passed only after the approval by the Inter-Departmental Committee. In case of non-approval from the Committee , content must be unblocked.

What concerns are been raised 

Concerns have been raised regarding various provisions contained in these new rules.

(a)  messaging services apps like whatsapp, Telegram have raised objections regarding the ‘first originator of content’ provision. Identifying the first originator , they say, would break their end-to-end encryption which has been developed with huge technical expertise and rigorous trials. It would also have consequences for user’s privacy and data security. Such encryption is essential for the exercise of their basic fundamental rights. Further messaging services rely on such technologies to increase their user base and breaking it would be detrimental to their business. Also provisions for using this power eg. for public order are broad and could give rise to a surveillance state- a sort of Big Brother State.

The Intermediaries Rules also clarify that in doing so, the significant social media intermediary shall not be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users. However, the Information Technology Decryption Rules contain powers to make demands for the message content. Used together, the government will break any type of end-to-end encryption to gain knowledge of who sent what message and also get to know its contents. Also, this specific requirement will break existing protocols for the deployment of end-to-end encryption that has been built through rigorous cybersecurity testing over the years!

(b) another concern raised by Internet Freedom Foundation is such sweeping changes on how digital media and social intermediaries are regulated are brought through executive fiat and not through law by Parliament. 

Further, consequence of not complying with rules would lead to losing of immunity under Information Act and criminal prosecutions under Indian Penal Code . such punitive measures should also be brought through an Act.

© social media platforms complain that in compliance with the rules they would have to now maintain elaborate mechanisms like appointing a grievance redressal officer, nodal contact officer and chief compliance officer all residing in India. This would be detrimental to ease of doing business and would entail cost.

(d) some digital media publishers complain that IT Act, 2001 only regulates social media intermediaries and is not meant for digital media. Therefore new rules framed under it go beyond its parent legislation. If the government wants to regulate online content and news media it should bring a separate law like for print media.

(e) executive exercise of judicial powers: Inter-departmental Committee which would be hearing complaints from other two tiers is an executive body which would exercise judicial functions like hearing complaints and recommending modifications and deletion since it would be headed by the joint secretary, ministry of information and broadcasting.

IF THESE CONCERNS ARE VALID AND THESE RULES ARE JUSTIFIED.

There is no doubt that in the last decade there has been a phenomenal rise of social media companies like Facebook and Twitter, which possess immense power by virtue of the revenue they earn and the huge amount of data they possess about millions of users across the world.

On one hand, they have democratized the access to information and made public creators and disseminators of content. They have a medium of choice for many for consumption of information. 

But at the same time such intermediaries have also become a medium of hate speech, fake news and content harmful for the general welfare of society like derogatory to the dignity of women and harmful for the security of the nation. 

In recent times like in the case of twitter it can be seen that such big giants can dare to defy the laws of the state and try to become custodian of freedom of speech and expression which is the prerogative of courts in any democratic and sovereign country.

These companies use algorithms which fail to distinguish between useful and abusive content and fake news which amplify in no time. These algorithms direct more content to people like what they have already seen thus creating the effect of echo chambers attenuating the psychological effect of the same type of information.

The Supreme Court in 2018, in the Tehseen S. Poonawalla v/s Union of India case, had already directed the government to curb and stop dissemination of explosive messages and videos on various social media platforms which have a tendency to incite mob violence and lynching of any kind.eg lynching incidents occur in northeast India because rumours about child lifters circulated on whatsapp group. The Court in 2017 observed that the government may frame necessary guidelines to eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications.4The new rules are thus in accordance with the previous Supreme Court observations.

Regarding traceability govt. emphasises that traceability would be required only in case of very serious offences such as sovereignty and  security of the country. It could also be implemented without breaking the end-to-end encryption thus the onus would be on these platforms to find technological solutions.

Failure to comply with the rules could lead to the removal of ‘intermediary’ status (a safe harbour to avoid liability for the content that their users publish) of the companies and could possibly invite sanction or even punishment under the law. Though many lawyers claim that this provision goes against the section 79 of the Act which provides  the safe harbour provisions.

young lady typing on keyboard of laptop in living room
Photo by Vlada Karpovich on Pexels.com

WAY FORWARD

As discussed earlier social media intermediaries have become too big to be left unregulated  and some sort of regulation is necessary . although self-regulation is best for news outlets and conducive for freedom of speech. But as experience suggests that it is also ineffective therefore 3-tier oversight mechanism is suitable for digital news and content creators provided it has legislative backing and inter-departmental committees could be made judicial in character.

Government has also prescribed a code of ethics for these digital media publishers which is the standard practice for any profession since news content creation on digital and print media is a similar profession both need to follow journalistic code of ethics. However, these codes should not be vague; instead they should be implementable and practical to follow.

Further freedom of speech is a cherished right but is not an absolute one. It needs to be curtailed with reasonable restriction. Since social media have hosted fake news and pornographic content such restriction is needed but it should not be intrusive and arbitrary.