The last few decades have seen a significant spike in the volume of internet facilities across the country. The relatively uncontrolled sector and the ‘Digital India’ agenda have made the digital economy accessible to practically everyone. On one hand, as a natural result, people from all walks of life turned to social media platforms to share their thoughts, gather information, and become a part of a virtual world where no voice went unheard and on the other hand, due to a lack of monitoring till now, the circulation of “false” news has risen. Many people use social media to fulfil their political agendas by spreading hate against the other parties. Misuse of any social platform for spreading anti-national activities is punishable under the court of law in India. In the recent past, we have seen certain such activities happening in our country like the promotion of protests against the government at the time of passing of Citizenship Amendment Act, 2019 and what all happened in the Kisan Andolan is known to all.
Hence, the Indian government recently announced new rules for social media platforms, OTT players, and digital media, which came into effect on 26th May 2021. The rules have been framed in exercise of the power granted under section 87 of the Information Technology Act, 2000. Similar provisions were there before under Information Technology (Intermediary Guidelines) Rules 2011, which stands replaced. The government through this welcomes social media platforms to do business in India on the condition that they need to follow the constitution and laws of the country. It contends that the proposed framework is progressive, liberal, and contemporaneous.
The need for such regulations
The new IT rules tend to regularize the use and abuse of popular online platforms. Here’s a simple breakdown of the new policy.
- The new rules not only apply to social media platforms and intermediaries but also apply to digital media websites, news websites that have come up in the last few years and are available online only.
- Further, the OTT platforms, i.e Over the top content players such as Netflix, Amazon prime video, Alt Balaji, everyone is covered under this rule, which includes the social media ethics code.
The government has put on these laws because they felt there is a need for some regulation for these tech companies. Not just in India, this has been a topic of debate worldwide for a while. And various countries are taking different kinds of paths regarding how to regulate big-tech companies. The government says that they have been receiving lots of complaints about women being harassed, their photos being shared, people being defamed on the internet, and no one is doing anything about it, that’s why they have come up with this code to regulate and to ensure that the users are not harmed.
With respect to the regulations on the OTT platforms, these outlets have a completely different business model for creation, distribution, and consumption than those regulated by established institutions. It gives these platforms the freedom to publish and display whatever they want. Newspapers and television stations must be registered before they can operate, and the news they broadcast is subject to regulation as well. However, in the case of internet news platforms, writing anything was quite simple because anybody could write anything, all they needed was a smartphone and access to the internet, and no one could tell them if what they displayed was legal or not. Therefore, to resolve this concern these platforms are asked to self-regulate themselves. The said guidelines have been made keeping in mind the difference between the viewership in a theatre and television as compared to watching it on the internet.
IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021.
Now concerning social media intermediaries, the rules have taken away some of the safe harbour that they have typically enjoyed under the IT Act, and they have been held more accountable for the content that is uploaded on their website by the users. The rules are making a distinction between what is a significant one and what is a regular social media intermediary. The number which will decide who becomes a significant social media intermediary has not yet been decided by the government but it’s likely to be someone with more than 50 lakh users. This means that most big players will be covered under the significant social media intermediary as a part of the rules. The rules state that these social media intermediaries cannot host content that is raising questions about the integrity and security of India, content which is explicit, which harms women and children, and the defamatory content, basically all that content which is typically illegal cannot be hosted by them and they need to proactively make sure that it has been removed and make a monthly report to show that they are doing what they say.
The news rules have various aspects. The most significant features of the new rules are as follows:-
- Content takedown – The rules seek to eliminate the content on these platforms which is threatening the security of India, harming women and children, promoting money laundering and gambling, etc. Upon receiving a notification by the appropriate government regarding the unlawful content on the social intermediary, the intermediary has to ensure that the said content has been removed from its platform. Once the government asks the provider to take down the prohibited content it has to be removed in 36 hours from request. The content with nudity and sexual harassment has to be taken down in 24 hours.
- Oversight process – The rules mandate the appointment of grievance officers by the company to overlook the content which is being circulated on their platforms. The basic idea is to have someone within the company to whom the government agencies can contact for the removal of content. They’ll have to ensure that something is done about the same and communicate it to the complainant within 15 days from the registration of the grievance.
- Identifying the source – The necessity of an SSMI, which primarily provides messaging services, is another significant addition made by the government to enable the identification of the source of information. Here, anonymity is a big issue, as the intermediaries themselves don’t know who is the originator of the content because of the end-to-encryption on some of them. Furthermore, if the first originator of the information is located outside of India, the first originator of information located inside India shall be deemed the first originator of information for the 2021 IT Rules.
- Publish Compliance reports – In addition to being governed by the common terms of service applicable to all users, an intermediary is required to publish a clear and concise statement on its website or mobile application, as applicable, informing publishers of news and current affairs that they are also governed by the intermediary’s terms of service. They have to publish a compliance report every month which will contain the details of complaints, actions taken against them, and post and content which has been taken down.
- Regulation on OTT – The OTT platforms will also now have to keep a tighter watch on the content they are uploading on their platforms. The government says that it has been done to ensure that there is some kind of level playing field because the films typically are censored in India by the censor board. They have been asked to self-regulate themselves and should categorize the content based on different age groups. The rules though this seeks to ensure that the adult content is not visible to the minors by the use of parental locks. Anyone who is below the age of 18 will be considered as a child and hence the intermediaries will have to add labels to the content.
Impact on the end-users: will this affect user’s privacy?
About the users, the rules are designed to empower them, if they find that someone is posting content, say for a woman, that her inappropriate photos are being circulated, then they can raise to the platform and ask them to do something about the same and can eventually even ask what they have done about it. Similarly, if they feel that their content has been unfairly blocked on a particular platform, then they can raise this issue to the grievance officer. Companies will be required to inform them on what basis their content has been removed. This resolves the issue that very often users don’t even know who to turn to when intimate pictures of them are being shared on a platform, rumours are being spread about them. But, it also means that they have to keep in mind what content they are uploading on these platforms. They also need to make sure they are not uploading anything illegal or which can be considered illegal.
So, on one hand, all these things might help the users but on the other hand, they can be a threat to the privacy of the people. Recently, there was a dispute on the WhatsApp privacy policy as a result of which the tech giant clarified that there will be no harm to the user’s privacy. Hence, the new rules may impact the privacy of the users as it mandates the company to identify the originator of the content when asked by the agencies.
‘A fine balance between privacy and national security can be achieved technically’, says Prof Veezhinathan Kamakoti of the Department of Computer Science and Engineering, IIT Madras, and a member of the government of India’s National security Advisory Board.[1] The idea is that each time a communication is transmitted, an encrypted identity of the sender is sent along with it. The message’s receiver is still unaware of the sender’s identity. Anyone who is offended by a message submits the message to WhatsApp, along with the EOI. The message is received by the platform, along with the EOI. It can readily determine whose number sent the message because it possesses the “private key.” When a person installs WhatsApp, it gathers all device-specific info, including location, and once it has the cellphone number, it will know who the originator is. WhatsApp may now determine whether or not to expose the user’s identity to law authorities. If it doesn’t mind disclosing its identity, the situation is over. If it refuses, a judicial process, such as arbitration, may be initiated at that moment.
Now it is for us to see how these intermediaries will incorporate the changes made by the rules and at the same time protect the privacy of their users. The government should also take into consideration the effect these new rules have on the privacy of its citizens and should take actions against the same at the earliest, as well as cooperate with the intermediaries in the process.
Companies perspective:
It is not easy for these companies to adopt the changes made through the new IT rules instantly, there is a need for them to adopt a new mechanism in order to comply with these changes. But with the same, there are some other issues which may be faced by these companies:-
- They will have to appoint grievance officers and set up infrastructure for compliance management requiring a huge amount of investment.
- There are big entities like Facebook and whatsapp who have offices in India, but they’re also exist small entities who don’t have any operational offices in India, they are wholly managed from their native countries. Hence, operating their platforms in India may increase their overall costs.
- Messaging platforms like whatsapp have an end-to-end encryption policy which means that even if they don’t know who is sending messages to whom, neither they are capable of knowing the originator of the messages because of its privacy policy. So, whatsapp doesn’t actually collect data hence this poses a new problem for the app. It has over 500 million users in India and is still very popular despite the uproar over privacy policy.
There is still no clarity on who complied with which part of the rules. Whatsapp has challenged the rule of decrypting the messages in the court of law, of which the decision has yet to be taken. Some of the companies have appointed chief digital and compliance officers while some have not. Then there are companies like Facebook who are willing to comply but have asked for time to make a way to incorporate the said changes.
Google LLC, on Wednesday, contended before the Delhi High Court that India’s new IT rules for digital media are not applicable to the company because it is a search engine and not a ‘social-media intermediary’ as classified by the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021.[2] The company has requested temporary protection from the Division Bench against the Single Bench’s labelling of the firm as a “social-media intermediary,” clarifying that it was a search engine, not a SMI, in the petition. Thus, Google contends that the new IT Rules are not applicable on them.
Meanwhile, there are entities like Twitter who are taking a step ahead in order to increase transparency of their platform.“We are lacking in transparency and giving people more choice and control,”[3] said Twitter’s CEO Jack Dorsey. The platform committed to make its content filtering procedures more transparent, offering users more influence as it works to become one of the world’s most open corporations.
Thus, the ongoing standup between government and companies has given a stick in the hand of the government to take actions against them. A rumour spread in the media that the non- compliance of these rules will lead to a ban on them, but this is not true. Government will soon come up and tell the consequences of non- compliance, but we have seen in the past where employees of companies have been named in the FIRs and proceedings have been initiated against them, thus it gives ammunition to the government to go against these companies which we can only hope doesn’t happen.
Conclusion
It has been observed that there are still mixed opinions on the different aspects of the new rules. Prima facie the new IT rules are designed to empower the end users and increase the transparency in the system through some of its vital features like mandating the publishing of monthly compliance reports, appointment of compliance officers, etc. This can be beneficial as it will increase the transparency in the system as well as provide the aggrieved users a mechanism to register their complaints.
But, with these vital highlights, a major downside has also been discovered. The problem of violating the privacy of the citizens can be considered as a major drawback of these rules. Till now, there has been no discussion held amongst the government relating to the issue of decrypting of messages as a violation of privacy hence needs to be talked about at the earliest.
Thus, since this legislation has been enacted to protect the rights of the citizens of the country the citizens should also have a say in it. Till now, the end users have not been asked their opinions about the rules hence a way should be derived so that the users can also be involved in it. The opinions of the intermediaries also plays a major role in it because they are the one who will be bound by these decisions. Hence, there is a need for a mechanism which enables one to take in consideration the contentions of all the parties involved or impacted through this legislation in order to derive a solution which is beneficial for all.
[1]The Hindu Business Line, available at: https://www.thehindubusinessline.com/info-tech/social-media/whatsapp-message-tracing-balance-between-privacy-and-national-security-can-be-achieved-says-kamakoti/article34683513.ece (last visited on June 5, 2021)
[2]The Hindu Business Line, available at: https://www.thehindubusinessline.com/companies/we-are-a-search-engine-not-social-media-intermediary/article34709755.ece (last visited on July 5, 2021)
[3]The Hindu Business Line, available at : https://www.thehindubusinessline.com/info-tech/social-media/twitter-intends-to-make-its-content-moderation-practices-more-transparent-jack-dorsey/article33939728.ece (last visited on July 5, 2021)
Author: Vanshika Darbari from Maharaja Agrasen Institute of Management Studies, New Delhi.
Juris Centre 