Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules 2021were brought in by the Ministry of Electronics and Information Technology for social media intermediaries (SMI), Over The Top (OTT) platforms and Digital Media Platforms, replacing the Information Technology (Intermediary Guidelines) Rules 2011, under the IT Act, 2000.
Recently some SMI platforms have raised objections over the new IT rules, and have said that their implementation will affect the privacy of its users. The government has given them multiples warnings, which have been as early as the 5th of June, on the need to comply with the guidelines. They have been threatened with facing a ban in India or that they will no more enjoy an exemption from liability as intermediary available under Section 79 of the Information Technology (IT) Act, 2000 or may even face punishment under the IPC. Sec 79 of the IT Rules, says an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
Misuse of Social Media for Anti-National Activities-
There has never been a definition of what constitutes anti-national activities, either by the judiciary or the legislature. As per Article 31D(4) of the Constitution of India being anti-nationals would mean any action taken by an individual or association which: –
- is intended towards actions of solidarity towards cession and secession of territoriality of the Indian State.
- which disclaims, questions, threatens and disrupts the sovereignty and unity of the country.
- Any intention of coup d’état.
- creates and disrupts public services with the vaguely phrased internal disturbances.
- spreads religious, racial, regional, caste and communal hatred.
The persons who engage with any of the 5 points above in any manner, would be termed as anti-nationals. Generally from the social media perspective anti-national activities may include illegal and unlawful content, including terrorism, radicalisation, content calling for a coup, hate speech, hate crime etc. Communal riots can also be termed as anti- national as they disrupt public services, and encourage religious hate. With over 400 million internet users, India is the 2nd largest internet population in the world. Thus, the internet today can be used to create various disruptions that may be against the state which may lead to severe violence across various regions.
There is a growing concern regarding anti-national activities in the recent past, specifically since 2015. Hate crimes and hate speeches have been on the rise in the recent past. Since September 2015 and December 2019 most hate crimes have been reported to be towards Dalits. Muslims followed as targets during that time period. Varying from caste, religion to honor killing and love jihad, a total of 902 crimes were reported because of this alleged hate.
In a landmark Shreya Singhal Case of 2015, the Supreme Court, struck down Section 66A of the IT Act, 2000 which criminalised offensive messages with menacing character, as unconstitutional. But people believe that the order didn’t take much notice of the rising cases of cyber-bullying, online hate speech and hate crimes. The fundamental rights of victims and the harm that can come about when individuals pursue professions via the online domain was also not taken into account.
The judgement was bound to affect the rights of various individuals who asked various social media platforms to remove offensive content that violated their privacy. The IT Rules, 2011 mandate the platforms to take the content down within 36 hours. But as per the judgement the provision of removing content within 36 hours was removed now one could only make someone liable to remove content through a government notification. This was according to the rationale that the intermediaries cannot be held liable for any content shared on their platform, which resembles the exception under Sec 79 that the intermediaries enjoy.
Since the compliance measures have been diluted, there was an immediate need to bring new rules to enable one to get speedy redressal against their grievances, in ways of removing content, or making someone liable for posting the content, or by any other means. We needed a better balance between the recourse that victims should be provided for having their rights violated and also social media platforms’ protection of free speech.
Vrious provisions under the IT Act and the IPC provide for criminalising acts like online rape or death threats, or the publishing of non-consensual sexually explicit content, all of which relate to hate crimes. But today there is a need to build an environment where one feels safe to use digital media, where the victims have an effective mechanism to get justice in case their rights are violated as online hate and sexual exploitation is becoming increasingly normalised in today’s day and age.
The figures provided by the National Crime Records Bureau are indeed troubling but one also wonders how many online crimes go unreported simply because victims do not feel that any application of justice will be forthcoming. In this regard, today, there is a need to include digital awareness in school’s curriculum so that the students are aware of their rights and also are aware of the means through which they can get justice.
There has also been growing criticism of the government for terming all activists as anti-nationals and booking them under the National Security Act , Unlawful Activities Prevention Act, etc. There have been various instances of the government using the said acts for their own benefit and terming informed citizens as anti-nationals for disagreeing with the policies and programs. The acts have been used to curb any dissent that may arise against the government which is why there is a huge outcry against the recent IT Rules which people claim will violate privacy and lead to more arrests by claiming individuals indulge in anti-national activities.
Salient Features of the New IT Rules-
The IT Rules are for SMI, OTT and Digital Media platforms. Salient features of the new IT Rules are –
- Sets out a policy and process driven due diligence for social media intermediaries to comply with. Non-compliance may lead to removal of immunity granted to the SMI’s under the IT Act.
- Clearly identifies content/ information that is offending which may include content harmful to children, which breaches copyrights, is defamatory or obscene, etc. 2
- Provides process for removal/ takedown of offending content by the social media intermediary either (i) voluntarily, (ii) based on a complaint or grievance or (iii) pursuant to an order of a court or notification by the appropriate government.
- Sets out a thorough process to trace the origin / first originator of content.
- The Rules introduce a three-tier mechanism for regulation of media / online content.
- Confers powers upon an inter-ministerial committee to recommend a block / takedown direction pursuant to a complaint received after following the process set out under the Rules.
- Social media and OTT platforms will be required to appoint compliance officers, namely the (a) chief compliance office, (b) nodal contact person and (c) the resident grievance officer to enhance accountability and ensure compliance with the Rules.
- Introduction of a content rating system, akin to that imposed upon traditional media bodies such as U (universal), U/A 7+, A (adult) etc. The content will have to be classified according to context, theme, tone and impact, and target audience. They will also have to display if any of the content has any discrepancy, for users to see and this has to be displayed prominently.
Critical Analysis: Privacy vs Need for Government Control:
The current IT Rules seek to provide a faster redressal system. They require a SMI to take down the offensive content within 24 hours. They have a provision to provide nodal contacts of the people responsible in relation to any offence occurring online. The IT Rules seek to establish responsible media ethics amongst the SMI’s and the OTT’s. With the rise in hate crimes in the recent past, there has been a greater demand for the need of the IT Rules to curb hate crimes and hate speeches gaining momentum in the recent past. It requires digital media to deal with the grievances within 15 days and comply with the existing Press Council guidelines.
Emphasis on the need for IT Rules has been highlighted by the Prajwala Judgement of the Supreme court in 2018. The Supreme Court then directed the government to step in and resolve issues related to misuse of women’s nude pictures. Also with the increasing trend of fake news, a calling attention motion in the Rajya Sabha also deliberated upon a guideline to identify the originator of a message.
Despite the need for the new IT Rules, there have been various dissenting views on its importance. Some believe that the current punishments in the IT Act, deal with all offences on OTT, SMI and Digital Media. The IT Act provides for punishment for indulging in voyeurism, for distributing a woman’s picture online without her consent, sending obscene material to a woman, for stalking, for sending and distributing explicit sexual content online, etc. Many believe the IT Rules 2011 were sufficient in dealing with crimes committed online. But in terms of speedy redressal the IT Rules, 2021 seem to be better positioned.
There have been various concerns regarding the IT Rules violating the privacy of individuals. In the Puttaswamy Judgement, Judge Chandrachud remarked that “The right to privacy imposes on the State a duty to protect the privacy of an individual. The right to life and liberty are inalienable to human existence – not bounties granted by the state, nor creations of the Constitution. No civilized state can contemplate an encroachment upon them without the authority of law.” With increasing awareness regarding privacy violations in India, the citizenry are concerned that the rules may violate their personal spaces and may publicise their personal data online via sharing with the government, etc. Concerns are also amplified as India currently does not have data protection law. But even under the Personal Data Protection Bill, 2019 the central government can allow any of its agencies in the interest of security of state, public order, sovereignty and integrity of India, and friendly relations with foreign states to process data, which again means that the data of individuals may be handled carelessly as there are no actual safeguards to processing data of individuals.
Social Media Intermediary Whatsapp has sued the government over the traceability clause, and claims that such a clause is against the privacy of individuals. Whatsapp has relied on the Puttaswamy Judgement which highlights the need for privacy for an individual and also seeks to prevent criminal liability of its employees. Whatsapp has said that to comply with the traceability clause, it will have to break the end-to-end encryption and thereby violate the privacy of the individuals and their right to freedom of speech and expression. It has also said that the traceability clause may lead to mass surveillance, as they will have to maintain a record of the messages and add some sort of an identity tab to each message. Another concern is that the traceability is not foolproof. People who may have forwarded the message even to fact-check to others may also be jailed which may lead to various human rights violations.
The government has replied to whatsapp saying it is a clear case of defiance. Further, that they will ask one to only trace the originator and that too in some cases and not all of them. Under Rule 4(2) of the guidelines, a social media intermediary could be required to trace an originator of a message or tweet or post “only for the purposes of prevention, investigation, prosecution or punishment of an offence offence relating to sovereignty, integrity and security of India, public order incitement to an offence relating to rape, sexually explicit material or child sexual abuse material punishable with is imprisonment for not less than five years. This clause may again lead to human rights violations as the present government has been known to use the clause ‘sovereignty, integrity and security of India’ for jailing any activist who may have an opinion against any provision of the government.
Twitter has also raised concerns regarding the new IT Rules, and has said it will continue dialogue with the government, and in the spirit of collaboration, will come up with a formula which will be best for public interest. They want to ensure they balance the objectives of the government and the public. Though, current acts of the government such a physically vandalising the twitter delhi office by the Delhi Police seem to be against any spirit of collaboration from their end and is an indication of their dissatisfaction towards twitter India for not complying with the government orders and also engaging in activity that may seem is against them but towards greater transparency such as tagging some of their tweets as ‘manipulated media’.
Social Media Platforms may have to come up with a different version of the same software to comply with the provisions of the IT Rules. They will also have to incur additional expenditure in terms of assigning new positions in India such as that of the Chief Compliance Officer. There has also been a lot of criticism regarding the timeline given to follow such rules. A year to comply is too less when the world is also dealing with a severe pandemic.
There have also been regulatory flaws with the current guidelines. The Ministry of Information and Broadcasting is responsible for the regulation of SMI’s but the current guidelines have been introduced by Meity, so it makes one wonder whether the guidelines were introduced by way of correct procedure. The IT Rules also have extraterritorial jurisdiction. Where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.
The rules are good in the direction of protecting the public against various online crimes and are a faster way to seek redressal through the various Grievance Redressal Platforms that need to be set up by the SMI’s, OTT’s and the Digital Media platforms. They provide the public a way to approach the platform representative quickly and remove content that is offensive, within a period of a mere 24 hours. But despite these provisions the rules have still faced criticism thus there is a need to either incorporate the public opinion or get the public’s favour by explaining to them the benefits of the rules. There is a need to arrive at a consensus so that the rules can be implemented harmoniously without any hindrances.
There is a need to weigh the pros and cons of the rules well and then decide which rules should be implemented. There should be proper consultations with the people and should not be solely made on the executive’s order without taking any public opinion. A Committee may be set up to review the rules and the rules may be modified to be able to stop anti-national activities and at the same time respect the privacy of individuals.
 (2013) 12 S.C.C. 73
 WP ( C) No. 576 of 2004
 (2017) 10 SCC 1
Author: Afra Ansari from CLC, Delhi University.