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NEW SOCIAL MEDIA RULES – DO OR DIE 2021
Read more on - Polity | Economy | Schemes | S&T | Environment
- The story: Large social-media companies such as Facebook, Twitter, YouTube, Instagram, and WhatsApp lost their legal protection for the user content posted on their platforms from 26th May, 2021. Now they stand answerable to Indian civil and criminal laws just like any other ordinary citizen or local entity.
- How situation changed: In Feb 2021, the govt. notified the Intermediary Guidelines and Digital Media Ethics Code of 2021, to take effect from 26th May 2021.
- What changed - Till 25th of May, these platforms enjoyed immunity when it came to the content posted by any third-party user on their platforms. The only obligation on them was to take down any illegal content that they noticed on their own, or when it was highlighted to them by the state, or the courts, or any responsible/aggrieved party. Now it’s a civil and criminal liability on them for any illegal post, be it in words, or a picture or a video.
- Legal shield - The shield for internet platforms (Facebook, Twitter etc.) was that they were merely platforms and not content creators or posters. So, as "intermediaries" they were not personally liable for illegal or obscene content posted, per se. Also, these "Intermediaries" were not required to disclose the contents of any message or any other information to the first originator. That is how "end to end encryption" came into being. All that was changed in the new rules, ending the concept of privacy and encryption.
- Legal shield in the US - Most large social media intermediaries are based in the US, covered by the Section 230 of the 1996 Communications Decency Act (CDA), which provides them a "safe harbour" from any content users post of these platforms. That's how these firms (Facebook, Twitter, and Google) became global conglomerates. Section 230 of the CDA is like the new Section 79 of India’s IT Act, and states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. So, the intermediary shall only be like a bookstore owner who cannot be held accountable for the books in the store, unless it is proven that there is a connection between the writer or publisher of the book and the bookstore owner.
- Legal shield in India - Indemnity is provided to social media intermediaries in India under Section 79 of the Information Technology Act. Social media companies with more than 50 lakh registered users will be considered ‘significant social media intermediaries’ (SSMI), as per the new norms under the Intermediary Guidelines and Digital Media Ethics Code of 2021. This means that as long as a platform acts just as the messenger carrying a message from point A to point B, without interfering in any manner, it will be safe from any legal prosecution brought upon due to the message being transmitted. By not agreeing to the new rules, the govt. has threatened to remove this protection.
- Draconian situation - Under part four of the amended IT Rules, significant social media intermediaries (more than 5 million users) are required to appoint a compliance officer, “responsible for ensuring compliance with the Act and rules” and be “liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary where he fails to ensure that such intermediary observes due diligence as per the Act". Social media companies will have to take down posts depicting nudity or morphed photos within 24 hours of receiving a complaint.
- Arrest possible now - As per Rule 4(a) of the IT Rules, the intermediaries must appoint a chief compliance officer (CCO) who would be held liable in case the intermediary fails to observe the due diligence requirements. This kills the safe harbour protections. So if a Facebook post or a post on Instagram violates the local laws, the law enforcement agency can book not only the person sharing the content, but the executives of these companies as well. The IT Rules in consonance with Section 69(a) of the IT Act means that this liability can even be criminal in nature where the CCO can be made to serve a prison term of up to 7 years.
- History of protection in India: In November 2004, someone posted an obscene video clip for sale on an auction website "bazee.com". The Delhi Police arrested some people, including the then CEO of the website, Avnish Bajaj, and others. Bajaj spent four days in Tihar jail before he was released, following which he filed a case seeking quashing of the criminal complaint filed by Delhi Police against him, arguing that the transaction was directly between the buyer and the seller, without any intervention from the website. In 2005, the Delhi High Court held that prima facie, a case was made out against Bajaj and his website. Bajaj was held liable under Section 85 of the IT Act, which says that when a company commits an offence under the IT Act, all executives in-charge at that time should be held liable and proceeded against. This was overturned in 2012 by the Supreme Court, which held that Bajaj or the website could not be held accountable since they were not directly involved in the said transaction. Then the IT Act was amended to introduce Section 79.
- Why this change in 2021: No one objects to the government working to offer more protection to vulnerable people in social media, like women at the receiving end of abuse. But there is a distinct political angle to this story, as per various observers. The social media platforms in India started seeing significant divergence in user views, from the official government perspective, on many issues. Observers say that created a strong counter for government's position, in a country where most media now airs pro-government content only. In that environment, the union govt. took steps to permanently alter the balance of power in its favour, where anyone whose posts were not in line with the government's own comfort, could be taken down. So, it made new rules in Feb 2021, asking all social media platforms to set up a grievances redressal and compliance mechanism. The Ministry of Electronics & Information Technology (MEITY) asked these platforms to submit monthly reports on complaints received from users and action taken. A third requirement was for instant messaging apps was to make provisions for tracking the first originator of a message. This is where it all breaks down, as privacy goes for a toss.
- Government's official justification: It said that these rules empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights. It also referred to the Supreme Court in suo-motu writ petition (Prajjawala case) vide order dated 11/12/2018 where it observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications. It also referred to the Ad-hoc committee of the Rajya Sabha report on 03/02/2020 after studying the alarming issue of pornography on social media and its effect on children and society as a whole and recommended for enabling identification of the first originator of such contents. ( https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749 )
- Mounting a counter-challenge: Given the scope of this problem, the social media firms will likely opt for a legal challenge to protect their officials as well as operations in India, specially if the government does not grant an extension in implementation of the norms (they were given three months to prepare for the new regime).
- "Right to Privacy" battle: Facebook Inc.’s WhatsApp messaging unit then filed a lawsuit in the Delhi high court to quash these new rules. In its petition, WhatsApp said the rules that came into effect on 26th May were a “dangerous invasion of privacy" and pose a threat to free speech. Enforcement of Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) will break WhatsApp’s encryption that ensures messages can only be read by the sender and receiver and the privacy principles underlying it.
- Rule 4(2) makes it mandatory for social media intermediaries to trace the originator of a message or post on their platform if required by a court or a competent authority under Section 69A of the IT Act. While the rules clarify that such an order may only be passed for serious criminal offences, some categories under which authorities can seek data such as ‘public order’ can be interpreted broadly, posing a threat to free speech and the right to privacy.
- The Puttaswamy judgement in 2017 which led to the judicial acceptance of "Right to Privacy" was a landmark ruling passed by the Supreme Court which said a person’s right to privacy must be preserved except in cases where legality, necessity, and proportionality are all weighed against it. WhatsApp contends that the traceability requirements violate users’ privacy and is against the Puttaswamy judgement, while the govt. will try to prove (to the Court) it is not so.
- IT Cell and WhatsApp University: No one objects to the government working to offer more protection to vulnerable people in social media, like women at the receiving end of abuse. But it is a well known fact that the most powerful political party in India itself runs a huge "IT Cell" that shapes narratives in social media, using posts that some find aggressive in nature, and often filled with wrong facts. Fact check sites frequently call out the same, too. The new IT rules, can well be another angle to this sordid saga.
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