The Information Technology (Intermediary Guidelines andDigital Media Ethics Code) Rules 2021 were released by the Ministry ofElectronics and Information Technology (MeitY) in February. Social Mediaintermediaries were given a three-month period to comply with the new rules.1 The government on May 26 issued fresh notice to all social media intermediariesseeking details on the status of compliance with the new rules that came into effect on that day.
Companies like Google, Facebook, WhatsApp,Telegram, Koo, Sharechat, and LinkedIn have shared details with MeitY as perthe requirement of the new norms. Twitter sought an extension of the compliancewindow and called for a constructive dialogue and a collaborative approach fromthe government to safeguard freedom of expression of the public. WhatsApp also filed a case in theDelhi High Court against the government ongrounds that the new rules violated customer privacy. The new Intermediary Guidelines and Digital MediaEthics Code have also been challenged by entities like The Wire, LiveLaw and TheQuint.
The IT Rules 2021 aim to empowerordinary users of social media platforms and OTT platforms with a mechanism forredressal and timely resolution of their grievance with the help of a Grievance Redressal Officer (GRO) who should be aresident in India. Specialemphasis has been given on the protection of women and children from sexualoffences, fake news and other misuse of the social media.
Identification of the“first originator of the information” would be required in case of an offence related to sovereignty andintegrity of India.A ChiefCompliance Officer, a resident of India, also needs to be appointed andthat person shall be responsible for ensuring compliance with the Act andRules. A monthly compliance report mentioningthe details of complaints received and action taken on the complaints would benecessary.
The OTT platforms, online news and digital mediaentities, on the other hand, would need to follow a Code of Ethics. OTTplatforms would be called as ‘publishers of online curated content’ under thenew rules. They would have to self-classify the content into five categoriesbased on age and use parental locks for age above 13 or higher.They also need to include age verification mechanisms for contentclassified as ‘Adult’.
A three-level grievance redressal mechanism hasbeen mandated. This includes the appointment of a GRO, self-regulatory bodiesregistered with the Ministry of Information & Broadcasting (MIB) to lookafter the Code of Ethics and a Charter for theself-regulating bodies formulated by MIB.
While the new rules were challenged by many on grounds ofviolation of free speech, the government has clarified that these rules permitsocial media platforms to operate in India freely but with due accordance tothe law. Every entity has to abide by the Constitution of the country and theRule of Law. Also, as per Article 19 of the Constitution, freedom of speech andexpression is not absolute and is subject to reasonable restrictions,especially in case of a threat to national sovereignty and security.
Misuse of Social Media
The rules come at a time when the country is constantly striving to ensure thesafety and sovereignty of the cyberspace and of personal data. Social media isincreasingly becoming an important part of an individual’s life. WhatsApp currentlyhas a user base of 340 million in the country, accounting for the largestnumber of subscribers in the world.2 Facebook has 290 million, Twitter 17 million, YouTube 265 million andInstagram, 120 million user base.
With such a huge population dependenton social media platforms, the tech-giants cannot choose to ignore the newand emerging challenges like persistent spread of fake news, rampant abuse of the platforms toshare morphed images of women, deep fakes and other contents that threaten thedignity of women and pose a threat to security.
Instances of use of abusive language,defamatory contents and hate speech in these platforms have become very common.The algorithms used by these platforms to optimize viewsand advertisements often fail to distinguish between relevant or useful contentand abusive content and fake news, thereby amplifying them in very little or notime.
In view of such emerging challenges, the Supreme Court in 2018, in the Tehseen S. Poonawalla v/sUnion of India case, directed the government to curb and stop dissemination ofexplosive messages and videos on various social media platforms which have atendency to incite mob violence and lynching of any kind.3 The Court in 2017 observed that the government may frame necessary guidelinesto eliminate child pornography, rape and gang rape imageries, videos and sitesin content hosting platforms and other applications.4
The new rules are thus in accordancewith the previous Supreme Court observations. As per the rules, intermediariesare mandated to remove or disable contents that are against the safety anddignity of individuals within 24 hours of receiving of complaints. Suchcomplaints can be filed either by the individual or a person on his/her behalf.According to the government, knowing the “first originator of information” (also known as “traceability”) of messagesthat cause violence, riots, terrorism, rape or threat to national security fallunder reasonable exceptions to Right to Privacy - which again is not absoluteas per the Constitution.5
Technological Hurdles with Respect to Traceability
Social media companies likeWhatsApp have expressed apprehensions about the provisions in the new ruleswhich require them to identify traceability when required to do so byauthorities. They contend that this could possibly lead to the breaking the of end-to-endencryption, which in turn can compromise users’ privacy.6
The government, on the other hand, has stated thattraceability would only be required in case of “very serious offences” thatthreaten the sovereignty and integrity of India. Further, it could also be implementedwithout breaking the end-to-end encryption. The onus, however, will lie on thecompanies to find a technological solution for the same.
Supplying metadata like phone number of the sender, the timeof sending a message, the device it was sent from and its location, could alsotrace the origin of a message. Interestingly, WhatsApp’s new privacy policyitself has a provision of sharing metadata of its users with its parentcompany, Facebook, for personalised ads.7 As per latest reports, the Union government has sent a notice to WhatsApp forwithdrawal of its new privacy policywhich has caused a lot of controversy since its inception.8
The Free Speech Debate
The social media giant, Twitter, has raised concernsregarding free speech over the new IT guidelines.It stated that it would strive to comply with the law but if guided byprinciples of transparency and freedom of expression under the rule of law. TheDelhi High Court on May 31 issued a notice to the microblogging site on a pleafiled against it for alleged non-compliance with the new IT rules.9
Failure to comply with the rules could lead to the removalof ‘intermediary’ status (a safe harbour to avoidliability for the content that their users publish) of the companies andcould possibly invite sanction or even punishment under the law. The government insists that the rules are neither arbitrarynor sudden, since the draft rules were put up for public comments and severalindividuals, industrial associations and organizations had responded. The comments were then analysed in detail and aninter-ministerial meeting was also held before finalising them.
The Way Forward
Freedom of speech and expression is the basictenet of any democracy. However, no freedom is absolute or completelyunrestricted. The imperative of striking the right balance between fundamental rights and ascertaining the reasonableness of arestriction has been a constant effort since the adoption of the Constitution.The debate has now reached the digitalworld. The on-going tussle between private, tech giants who own a substantialamount of Big Data, governments desirous of imposing reasonable restrictionsand users worried about issues relating to data privacy and constraints on freedomof speech and expression, is likely to get more complicated before optimumsolutions can be arrived at. The IT Rules 2021 seek to address concerns of the citizens without infringing on their privacy and personalliberties, while maintaining digital sovereignty at the same time.
Views expressed are of the author and do not necessarily reflect the views of the Manohar Parrikar IDSA or of the Government of India.
