Discussions & Debates
Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 sets rules for the Social media platforms in order to maintain smooth functioning of these platforms in India and to aid in reducing crimes.
Though by the name it may seem to be a very neat and such a law which made for the benefit of Indian citizens. However, if we look into the specific rules and focus on the wordings, it gives immense power to the Government.
Have a look on Rule 4(2): it provides power to the specified authorities to ask for the origin of a message, now according to me the concept is not the issue problem lies in this "authority" because as stated Court and ANY AUTORITY SPECIFIED UNDER SECTION 69 OF IT ACT, now Government is this authority according to IT Act. Ideally this should not be an issue but we all know how this provision can be politically misused when combined with some other vaguely worded rules. Proviso of the same rule provides the grounds for taking this action, one of the ground is Public order which itself is a very wide term and technically with just a creative mind anything and any thing done can be somehow related to public order. This is why Right to Free speech and Expression is being highlighted in the whole issue.
Not only this, the practical implication of of these rules will for sure violate the right to privacy and create fear in minds. It is true that reasonable restrictions can be applied but if there is this law providing power to know that I originated a message which at the time I did not knew can be a potential threat when viewed in isolation. now, first: I had no intention it was the action of other person who circulated the cropped message due to which my Right to Privacy was firstly restricted because the government is only worried about the words they focus not the context Second, next time I wont dare to use that platform to share my thoughts.
Due to these rules there will be a chilling effect on the citizens as people will fear of sharing personal thoughts, criticisms which are essentials of democracy but these things can easily be taken under the term Public order therefore will create fear in the minds of common people.
The decline of human rights in India has been apparent since the BJP-led NDA government came to power in 2014. This was followed by a slew of assaults on democratic principles and civil and political liberties, which include press censorship and arrests of journalists, antagonization of academics, attempts at intrusion of privacy in the name of national security, to name a few. Consequently, this reflected the decline of India's ranking on many forums which deal with freedom aspects (India's rank is 142nd on the 2021edition of Press Freedom Index). In the wake of all this, we are now witnessing another assault on our liberties in the form of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
To confine this opinion piece to the human rights aspect of the IT Rules, we have to first understand that the right to privacy is an established human right, and has been affirmed as such in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and has also been held as a fundamental right under the right to life guaranteed by Article 21 of the Constitution of India (Justice K.S. Puttuswamy (Retd.) v. Union of India, 2017). Considering this, we now have to understand that the new IT Rules have placed an ultimatum before social media platforms, who serve as intermediaries to transmit messages from one point to another, to provide the government with access to the content of the messages, as well as traceability of the originator of the message, or be stripped of the protection afforded to them as intermediaries under Section 79 of the IT Act, 2000. This goes well against the right to privacy, and it can have serious consequences on the citizen's right to freedom of speech and expression.
In essence, this allows the government to collect the data that is being transmitted by a very significant number of internet users in India, but also crack down on anything they find in bad taste. So, not only will the companies incur significant costs in breaking end-to-end encryption (that is if they choose to comply with the rules), but will also provide the government with an array of unbridled powers to enforce some of the more shady methods of compliance, as has been seen, lately. Section 69A of the IT Act, 2000, enables the government to block public access to any information they deem to be against national interest. Coupled with Rule 4(2) of the new IT Rules, the originators of the message can be traced for the same purpose.
Here is where the questionable part arises. When PUBG Mobile, as well as more than a hundred apps, was banned in India in September, 2020, the reasons given by the government included the collection of users' data by "elements hostile to national security and defense of India", but now, the government seems to have no qualms about collecting the data of their citizens by all means available. So while this hypocrisy is not only apparent, the long-running gag of national security has become more distrusted by the citizens than it has ever been. While the government claims that it has no interest in breaking encryption for everyone, the vague wording of the Rules and their recent actions have spoken otherwise. The recent crackdown on Twitter's Gurugram office, in the wake of the microblogging site labelling a tweet by Sambit Patra, the BJP spokesperson, as "manipulated media", has cast all the more doubt on the government's genuine motives.
To conclude, it would be pertinent to summarize the threat that we now face to our right to privacy, right to freedom, and by extension, our right to life. One may think that this entire opinion is a pessimistic whim, but the recent actions of the government have not given any reason to dispel such notions. Imagine living lives where we have to think about interacting in a way that the government deems appropriate, where any opinion of dissenting nature can subject you to punishable liability and deem your actions to be against national interests. As I type this, I may be guilty of the same thing. Does it sound like an Orwellian state of affairs? That's probably because it is, or has the potential to be.
IT rules which were notified in the official gazette as the "Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021" which replaced the Information Technology (Intermediaries guidelines) Rules, 2011, fundamentally changed the experience of the internet users.
The new IT rules has part II and part III which deals with social media platform and OTT platforms respectively. The foremost change that was brought is to provide "discretionary power" to the government to identify which social media platform need to comply with the regulations. The basis of the same is the "material risk of harm" that can be caused by that platform. Further, the rules make it necessary for the intermediaries to notify the users not to do anything illegal more than once a year.
The major concern while implementing new IT rules is the privacy of the users. The right to privacy is a fundamental right under Article 21 of the Constitution. Now, the new IT rules ordered the intermediaries to provide the government with the information about the originator of the message which can have serious consequences on the citizen's right to freedom of speech and expression. The implications of new IT rules has many benefits like the government will able to trace the originator of the message that could possibly be a threat to the public or national interest . However, the same cannot be done at the risk of violating the fundamental rights of the citizens.
while concluding it can be said that new IT rules have far-reaching consequences on online privacy, freedom of speech and expression which must be considered by the government before implementing it.
Information Technology Rules, 2021 (Guidelines for intermediaries and digital media ethics code).
This new set of Information Technology Rules primarily focuses upon the role of intermediaries which in basic term are social media platforms. The intermediaries have some immunities like immunity for being held responsible for someone’s objectionable content. But, as per the new social media rules and provisions that the government has passed recently, the immunities that these intermediaries had has been removed to quite an extent.
Government had given three months time to the intermediaries to appoint a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer. All three of whom are required to be residents of India. In my opinion, because of this requirements the tax liability of these social media platforms will increase and many small innovative platforms will be discouraged to continue in India.
As per these new rules, every year these intermediaries have to send reminders to the users to least once, that if they do anything illegal, their account will be deleted. Additionally, these intermediaries will have to publish a monthly compliance report enumerating the complaints received and those on which actions was taken also the content of complaint on which action was taken. The data retention period has been doubled to 6 months for “investigative purposes.” This means that if you make an account on social media platforms and subsequently, delete them, even then the social media platforms will keep your data for the next 6 months because the government is permitting them to do so. But the harsh reality is that in our country there is no robust data protection law. Here the question which is open for interpretation is that which data do social media platforms take? Which data would they store for 6 months? We will have no idea. But the scariest thing in these rules is that these intermediaries will have to enable tracing of the originator of information on their platform if required by the court of competent jurisdiction or competent authority. It means when the government wants these platforms will have to provide the information of ‘first originator.’ Technically, it is not possible to do for few social media platforms such as WhatsApp and Signal which has end-to-end encryption. So, if they wish to comply with the new rules then they have to breach their end-to-end encryption.
Various reasons have been given in the new rules which the government may use to enforce action from these social media platforms. Some reasons are very obvious, like sexual content being posted or child abuse is being posted but few reasons as such that is some content is against ‘public order.’ It is such a broad term that if the government declares that showing farmers protest or to criticize the government is against public order then the account will be suspend. Using broad terms might be misused very easily by the government. Some months ago, the government has asked Twitter to ban some Twitter accounts in India. Twitter banned some of them but refused to ban the others because there wasn’t a legit reason behind banning them. There’s a strong belief of many experts that the new rules brought by the government now is to force companies like twitter into taking action. If now twitter refuses to ban the accounts, the government can bring legal consequences against Twitter.
Now, on the other side government is trying to regulate the OTT platforms. There are some good things in my opinion about these new rules as the OTT platforms have been told to self-classify their content into 5 age categories i.e., U, 7+, 13+, 16+ and A category. This is an appropriate action in my view because the viewer must be aware of the category of content he/she is going to watch. Also, parental lock system have been introduced, Age verification mechanism has also been introduced and all these actions should be appreciated and are the need of the hour. But the OTT platforms and digital news are being told that they have to follow the Code of Ethics as per which they cannot put up any content which is against the sovereignty and integrity of the country, endangers the security of the states; which is threat to the security of the country, which is detrimental to India’s friendly relations with the foreign countries or any such content which incites violence. There are no problem with all these and it is justified that no content should be made that goes against the country or incites violence, but in the end, they added another controversial phrase i.e., “or any content which disturbs public order.” Here, what is this public order? It’s determined by the government, whatever the government thinks is justified will be labeled as a content disturbing public order. This, again, is a very broad term inserted in the Rules, that has significant chance of being misused.
In my opinion, another dangerous point in the new rules is the Emergency Blocking Power given to the Ministry of Information and Broadcasting in those cases where “no delay is acceptable.” Here which are the cases where no delay is acceptable? It is not defined. It’s up to the government to label the cases where no delay would be acceptable. These new rules will destroy the foundation of democracy in our country. To decide whether the content is appropriate or not, against any religion or not, incites violence or not, or basically whether the content is right or not is the duty of our Judiciary system. Today, if anyone has an issue with these things, they can easily complain about it in the courts and there are existing rules for it. What new problems did the government see that they had to interfere and label themselves as the competent authority to decide which content is acceptable and which isn’t. What the use of courts in these cases then? Why are there four pillars of the democracy then? There should be a balance among all pillars of the DEMOCRACY.
With the Indian police raiding on Twitter India’s offices based in Delhi and Gurgaon after marking a tweet of Sambit Patra as manipulative media, social media platforms were in news trending. All started with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which was a new rule added to the pre-existing Information Technology Act, 2000. This new set of rules mandated social media platforms to follow new norms and if not they would be stripped of their intermediary status. Social media platforms were given 3 months time period to comply with these new set of rules. These new rules consist of
1. Appointing a Chief Compliance Officer who shall ensure that the platform is complying with the said act and rules
2. Appointing a Nodal Contact Person who shall coordinate with the law enforcement agencies.
3. Appointing a Residence Grievance Officer who shall redress grievances through Grievance redressal Mechanism
4. Issue a Monthly Compliance Report which should contain the complaints received by the platform and the action taken against such complaints. The report should also mention the contents removed by the platform.
One of the essential condition for appointing a person to the above posts is that the person should be a resident of India. Instant messaging platforms were asked to comply with an additional rule which was to trace the originator of a text
Compliance with these guidelines would result in loss of the “Intermediary Status”. This Intermediary status is like a safe haven for social media platforms.
This provision has a history where a student auctioned an obscene video clip on an online website and thus the owner of the websites was also charged for the offence. The previous IT Act held all the executives in charge liable but later this Act was amended and Section 79 was added to the IT Act 2000. “Section 79 says any intermediary shall not be held legally or otherwise liable for any third-party information, data, or communication link made available or hosted on its platform”. Thus, this section protects intermediaries ( in this case social media platform) from legal action against any objectionable content posted on their platform as this section considers intermediaries only as a messenger service that connects people like a bookstore owner cannot be sued for defamatory content of a book that he sold. Though to avail protection under this section the intermediary platform shouldn’t initiate the transmission of such content and shouldn’t modify any information contained in the transmission.
Thus, voiding social media platforms of this status wouldn’t make them illegal in India, they can still operate in India but when a controversy over the content arises in the near future, they cannot avail the defence of an Intermediary under Section 79 of the IT Act and thus social media platforms would be prone to danger.
According to the government, it wants increased accountability of the social media platforms and a proper redressal system for efficient grievance resolution by the introduction of these new guidelines. The govt. mandated the new posts to be held by a resident of India as he could be easily made liable in case the intermediary fails to observe the due diligence requirements. This liability could be criminal to and if proven guilty the said executive of the intermediary platform could even be sentenced for a period of 7 years if the platform were to be found guilty.
Thus, the government has made a tough situation for social media platforms. On one hand, social media platforms argue such rules are limiting the freedom of speech of Indians and on the other hand the govt. wants full control and wants to calm down over any such content that it sees unfit or derogatory in nature. These new rules have empowered the govt. to such an extent that it's now solely at the discretion of the govt. to mark any content as derogatory and remove it from the platform.
There are laws similar to Section 79 of the IT Act in other countries, USA has section 230 of the Communications Decency Act, 1996 which states “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” succinctly it provides a safe haven for the social media giants operating in the USA.
These new rules also empower the govt. to flag any content on these platforms as derogatory or illegal and flag them, after flagging content as derogatory it's on the social media platforms to take down such “derogatory” within 36 hours. Previously the only obligation on platforms was to take down any derogatory or illegal content that noticed on their own. Such power can be used to kill content that is against the government and this would result in the restriction on the freedom of speech of the citizens.
Certain intermediary platforms have agreed to concede with the said regulations other have blatantly criticized the government for such restrictions. WhatsApp has challenged the traceability clause in regulation as the platform offers end to end encryption and thus even WhatsApp couldn’t access the messages between its users. If WhatsApp were to comply with norms it has to remove its end-to-end encryption and thus WhatsApp contended that it could jeopardise millions of users’ privacy. WhatsApp challenged it in the Delhi High Court relying on the 2017 Supreme Court judgement in Justice K S Puttaswamy VS Union of India. This judgement paved the way for the right to privacy and the supreme court stated the right to privacy as a fundamental right under Article 21 of the constitution.
The government issued such guidelines stating it was essential to battle fake news and to make social media accountable for it, but here the problem is that the government decides if the content is suitable for the public to view. As already stated, this is a blatant crackdown of fundamental rights, instead of violating the fundamental rights of the citizens and presenting the same on the international platform, policy changes are required to tackle such situation without restricting people’s rights.
 Justice K.S Puttaswamy and Ors Vs Union of India, 10 SCC 1
The privacy and procedural aspects of the WhatsApp vs. the State (on the IT rules) aside, the case touches upon nuances of several human rights.
The core bone of contention is primarily of violation of principles of civil and political rights which are derived from the inherent dignity of the human persons. When we read and further analyze the arguments from both sides - on the question of freedom of expression - the first thought is to immediately resort to the commentaries of principles of UDHR; ICESCR; ICCPR (emphasis on Article 19) and other human rights principles, internationally recognized. India is allegedly and seemingly failing to observe these principles. Where on the one hand, the State’s argument lies on the ideas of “reasonable restrictions”; “national security” and “public order”, on the other hand, the company is consistent on its stance that the Rules are in direct violation of 3 part test of- legitimacy, Proportionality and Necessity.
While making Rules which goes beyond the purviews of mere privacy and constitutionality and based on the fact that the rights bestowed to the civilians by the statutes are not absolute per se, the State also must not be giving “chilling effects” to these modern liberties.
In my opinion social media is a platform which has no veracity. Everyone is throwing his or her views on the posts without knowing the true story behind it and its repercussions.
According to me Government is doing right by implementing new rules to find out originator of the bogus messages or posts.
As per the law government will only ask for the originator of the messages in the selected cases or with the permission of the competent court.
This will give halt to offences like child sexual abuse, offences related to the security of the nation.
With the implementation of new rules there will be appointment of chief compliance officer, nodal contact person and resident grievance officer. They will be working on the numerous complaints received and will have to publish compliance report.
If the new laws are really created to control the ongoing offences then these new rules must be implemented as nation security must be prioritized over individual privacy.
As the WhatsApp said that the new rules will break end to end encryption and all the messages will become accessible but the government has clearly said the very purpose is to find the originator of the messages which deemed to be inappropriate. Govt. is not asking for the personal messages of the individual.
IT Rules 2021 aims to keeps check and balance over the social media platforms to ensure data is not shared unlawfully and there is adherence to rule of law. These rules enhance the regulation of government over these platforms and increase the accountability of digital platforms that can prevent arbitrary actions. However, allowing traceability mechanism to government can weaken the security architecture of platform and lead to threat to the privacy of an individual.
It also mandates a grievance redressal system and empowers users in a way so that users can raise their grievance against the misuse of social media. This regulatory mechanism will prevent instances of fake news, disinformation and also reduce spread of defamatory content and disruption of public order. We can say that it will strengthen India's position as a leader in digital policy and technological innovation.
However, these rules may curtail freedom of speech over digital platforms and there will be less flexibility and agility. A balance must be maintained between freedom of speech and the need to prevent misuse of digital media. Both the government and the internet platforms will have to coordinate in order to fulfill this obligation.
In my opinion the new IT rules allows the government to collect data from a large number of internet users in India, as well as to take action against anything in deemed to be in bad taste.
as per Rule 13(4) this also now includes powers of censorship such as apology scrolls, but also blocking of content! All of this is being planned to be done without any legislative backing or a clear law made by parliament.
Our judicial system is responsible for determining whether the material is appropriate or not, whether it is offensive to any religion or not, whether it incites violence or not, and whether the content is correct or not. What new issues did the government see that required them to intervene and declare themselves the competent authorities to determi