In the News
Today, growing concern about the lack of transparency, accountability and user rights related to digital media has led the government to step in and after in-depth consultation with the public and stakeholders, the Government of India had the information Technology Rules (Guidelines for Intermediaries and Digital Media ethics code), 2021, in February of this year. These rules require social media intermediaries / platforms to adhere to a stricter set of rules for a three-month period ending May 25th.
Social media is a communication technology that can create or exchange information, ideas, and other forms of expression through virtual communities and networks.
Digital India program is helping ordinary Indians with technology. The widespread of mobile phones, internet etc. has provided many social media platforms to expand its presence in India. Ordinary people also use these platforms in remarkable ways. as the user base of the most important social media platforms in India:
- WhatsApp users: 53 Crore
- YouTube users: 44.8 Crore
- Facebook users: 41 Crore
- Instagram users: 21 Crore
- Twitter Users: 1.75 Crore
The growth of social media on the one hand empowers citizens and on the other it leads to some serious concerns and consequences that have arisen in recent years. Regulations and in the deliberations of civil society in different parts of the country. These concerns are also being raised around the world and it is becoming an international problem.
Concerns from Social Media Platforms
- Spreading Fake News
- The rampant abuse of social media to disseminate altered images of women has often threatened the dignity of women.
- Abusing social media to unethically resolve corporate rivalries has become a major concern for businesses.
- The use of abusive language, defamatory and obscene content and the lack of respect for religious feelings through platforms are increasing.
- Recruiting terrorists, spreading obscene content, spreading discord, financial fraud, stimulating violence, public order, etc.
IT Rules Background
The Information Technology Act, 2000
- Enacted by the Indian Parliament in 2000.
- It mainly concerns matters related to cybercrime and e-commerce.
- Under this law, foreign nationals can also be charged for any crime related to a computer located in India.
- The law also provides penalties for cybercrime and digital / electronic fraud.
The IT Act of 2000 was amended in 2008
- This amendment introduced the controversial Section 66A into the law. Section 66A gave authorities the power to arrest any defendant who posted content on social media that might be considered “objectionable”.
- This amendment was adopted in Parliament without debate. The government denied that the section did not violate any fundamental rights and that only certain words were prohibited. With the multiplication of Internet users in the country, it is necessary to regulate content on the Internet as in print and electronic media.
- The Supreme Court overturned this section of the IT Act in 2015 on the grounds that it was unconstitutional for violating Article 19 (1) (a) of the Constitution in the famous Shreya Singhal v Union of India (2015) case .
Rules of the Directive for Information Technology Intermediaries (Amendment), 2018.
- The rules were formulated in Section 79 of the Information Technology Act. Section 79 (2) (c) of the Act stipulates that intermediaries must exercise due diligence when performing their duties.
- An intermediary is a service that makes it easier for people to use the Internet, such as Internet Service Providers (ISPs), search engines and social media platforms.
In 2018: The Supreme Court (SC)
- Finding that the Government of India can establish the necessary guidelines for the removal of pictures, videos and websites of child pornography, rape and gang rape on the content and other application hosting platforms.
In 2020: An Ad Hoc Committee of Rajya Sabha
- after examining and recommending the issue of pornography on social media and its impact on children and society as a whole, recommended the identification of the first creator of such content.
In 2020, the government brought video streaming over-the-top (OTT) platforms below the limits of the Ministry of Information and Broadcasting.
IT Rules, 2021
- Due diligence requirements for intermediaries: intermediaries, including intermediaries in social media, must comply with due diligence requirements; If the intermediary does not fulfill his duty of due diligence, the Safe Harbor provisions do not apply to him.
- Grievance Redressal Procedure: intermediaries should appoint a Grievance Officer to handle complaints. This officer must acknowledge the received complaint within 24 hours and resolve the problem within 15 days.
- Ensuring online safety and the dignity of users: intermediaries must remove or deactivate content that shows partial or complete nudity, sexual acts, altered images, etc. within 24 hours of receiving the complaint or someone on behalf of individuals.
- Additional Due Diligence for significant Social Media Intermediaries: must appoint a Chief Compliance Officer, a Nodal Contact Person, and a Resident Complaint Officer, and all of these officials must be based in India. they must receive a monthly compliance report detailing the complaints.
- Establish the identity of the author of the message / content.
- Unlawful information removal: an intermediary upon receipt of actual knowledge in the form of a court order or upon notification by the relevant government or its agencies through an authorized officer shall not host or publish any information prohibited by law relating to the sovereignty and integrity of India, public order, friendly relations with other countries, etc.
Issues with the rules
- Interferes with Free speech and expression
The Supreme Court in the Life Insurance Corpn. of India versus Professor Manubhai D. Shah (1992) had advocated “the freedom to express one’s views as the basis of any democratic institution”. Therefore, the rules need to be critically analyzed in search of the barriers that they have recently imposed.
- Violation of legal principles
- The regulations were drawn up by the Ministry of Electronics and Information Technology (MeiTY).
- The second schedule of the Business Rules, 1961 does not, however, authorize MeiTY to issue regulations for digital media.
- This power belongs to the Ministry of Information and Broadcasting.
- This action violates the legal principle of “colorable legislation”, in which the legislature cannot do something indirectly if it is not directly possible.
- The new IT rules, which claim to be subordinate to the IT law, therefore go beyond the regulatory powers conferred on them by the IT law.
- It strips the intermediary of fair legal action
- It is now understood that an intermediary must withdraw the content within 36 hours of receiving a government order.
- This deprives the intermediary of a fair legal recourse, due to a strict schedule, if he does not agree with the official order.
- Invasion of Privacy
- These rules undermine the right to privacy by imposing a traceability requirement.
- The immunity that end-to-end encryption gave users was that intermediaries had no access to the content of their messages.
- The imposition of this mandatory traceability requirement will break this immunity and thus weaken the privacy of these conversations.
- Operating Costs
- The rules create additional operating costs for intermediaries by requiring them to have India-based Node Officers, Compliance Officers and Complaints Officers.
- Intermediaries must also have offices in India.
- This makes making profits for multinational corporations and startup intermediaries an unlikely goal.
Government argument in support of new IT rules for social media
- Social media companies are not legal intermediaries: From a legal point of view, social media companies are not considered intermediaries. According to Section 2W of the IT Act, the definition of an intermediary does not include social media companies. This section mentions intermediaries such as internet service providers, online auction sites, online marketplaces, etc., but as per the rules, the government mentioned that social media companies will be treated as intermediaries if they adhere to the new rules.
- Compliance with Indian Laws and Regulations – To date, these social media platforms have not followed any specific Indian guidelines regarding the content on their platforms. The new IT rules should change this perception. Rules and regulations as they are followed by the print media when publishing.
- End-User Benefits: The government emphasizes that these new social media IT rules will benefit society in general. For example
- Secure right to privacy: once the rules come into effect, users’ personal photos and personal information will remain safe with the user.
- Safety for vulnerable sections: Children and women are now safe on social media. The likelihood of cyberbullying, obscene content and harassment is reduced on social media platforms.
- Promoting the Integrity of the Nation: If the rules are strictly enforced, any post that advertises a particular race, gender, caste, or religion will shrink over time. This will promote India as a multicultural society.
Social media are a gray area of cyberspace in which private and professional life merge. Therefore, great caution is advised when weighing constitutionally guaranteed rights of speech and expression and the administrative obligations of the government.