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 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 recent times, the social media platforms are used by almost everyone around us. The massive exchange of information has also given rise to sharing of obscene and abusive content which can be found in the form of either written comments or any other means possible. Not only this, false information spreads through online platforms like a wildfire, unlike which the hearsay and fake news are almost impossible to be eliminated. Even when false they tend to cause a lot of damage to an individual or an organisation concerned with such news/ information. Today’s youth who amongst all the generations have the strongest social media presence, rely on the information provided on social media which is almost always biased towards ones side as it merely shows the opinion towards the topic at hand. The incomplete knowledge of the situation is not considered by the others which brings them to react irrationally against the society and sometimes the government.
In order to deal with the privacy issues and in order to restrict the sharing of content which is abusive, false, defamatory and obscene in nature Section 79 of the IT Act has removed the protection from the intermediaries. This is a necessary step in order to determine the originator of a content which contains information, enough to bring a legal action against such originator. The Section does not take away the protection altogether, however in my opinion, it just acts as a warning and provides restriction to the intermediaries and their supervisors to keep in check the quality and nature of the content being posted. This cannot be considered a hindrance to the Right to Speech and Expression under Article 19(1)(a) of the COI as it does not violate the purpose of communicating freely, it only marks boundaries to speak what is socially appropriate which would not cause chaos in future.
The new IT rules can have drastic effects on the citizen’s right to freedom of speech and expression. Basically the Indian government is trying to collect all the personal data of their citizens by all possible means which is a direct infringement of Article 19(1) of the Indian constitution.
I agree that with the help of these new rules government will be able to trace the originator of information or threats regarding the national interest but the cost of achieving it is too high. In order to comply by the new IT rules all the social media platforms have to suppress their end to end encryption technique which would jeopardize the safety of the millions of citizen in India.
With the implementation of new rules there will be an appointment of chief compliance officer who will decide whether the post/message is appropriate or not, whether it is offensive to any religion or not but this is the duty of our judicial system to resolve disputes not any other officer.
This is a vast topic but the balance between freedom of speech and the need to avoid misuse of digital media must be maintained. In order to meet this commitment, the government and online platforms will need to work together.
In recent times, the social media platforms are used by almost everyone around us. The massive exchange of information has also given rise to sharing of obscene and abusive content which can be found in the form of either written comments or any other means possible. Not only this, false information spreads through online platforms like a wildfire, unlike which the hearsay and fake news are almost impossible to be eliminated. Even if they are false, they cause a lot of damage to an individual or an organisation. Today’s youth who amongst all the generations have the strongest social media presence, rely on the information provided on social media which is almost always biased towards ones side as it merely shows the opinion towards the issue at hand. The incomplete knowledge of the situation is not considered by the others which brings them to react irrationally against the society and sometimes the government.
In order to deal with the privacy issues and in order to restrict the sharing of content which is abusive, false, defamatory and obscene in nature Section 79 of the IT Act has removed the protection from the intermediaries. This is a necessary step in order to determine the originator of a content which contains information, enough to bring a legal action against such originator. The Section does not take away the protection altogether, however in my opinion, it just acts as a warning, and as a restriction towards controversial topics for the intermediaries and their supervisors so they could keep in check the quality and nature of the content being posted. This cannot be considered a hindrance to the Right to Speech and Expression under Article 19(1)(a) of the COI as it does not violates the purpose of communicating freely, it only marks boundaries to speak what is socially appropriate which would not cause chaos in future.
The new IT rules about social media definitely enhance the cyber security, powerful investigation, and mitigate cyber crimes as it creates a threat in the mind of wrongdoers. WhatsApp is suing the Indian government over a ‘traceability’ clause in the new Intermediary Rules 2021 and arguing that these rules are unconstitutional and directly violates the fundamental rights of the users (Art. 21). But as we all know that the right to privacy (discussed in Art. 21) will come with reasonable restrictions, adding that social media companies will only have to give the originator of a message in select cases and based on an order from a competent court. Also, tracing the first originator is only under special or limited circumstances and not for all the WhatsApp users.
According to me, these guidelines are only for the purposes of prevention, investigation, regulation, punishment etc. of the offences relating to sovereignty, dignity, integrity and security of the nation and against the offences related to rape, sexually explicit material or child sexual abuse material which are punishable with imprisonment for not less than five years or fine or with both.”
The new IT rules impact all the significant social media intermediaries in India having more than 5 million users like facebook, Instagram, twitter, whatsapp and Google etc. It includes the requirement to appoint a resident grievance officer as part of a larger grievance redressal mechanism, active monitoring of content on the platform, monthly compliance reports for Indian users, self-regulation mechanisms and also an oversight mechanism created by the Ministry of Electronics and Information Technology.
Part III of these rules states the code of ethica on these social media platforms including OTT platforms like Netflix and Amazon Prime. It gives an authority to the government to filter and disable the adult content like showing partial nudity and sexual activity.
A major bone of contention in these guidelines is Rule 4(2) which talks about the traceability or tracing the first originator of the message. Whatsapp is against this rule becuase for implementing this requires termination of end to end encryption facility on their platform. This move will potentially jeopardize the privacy of the users and hamper freedom of speech and expression leading to grave violation of fundamental and human rights.
If these platforms don't comply with these new IT rules then they will be alienated from the legal immunity provided under Sec 79 of the IT act.
While it is true that these new rules provide a better and faster grievance redressal mechanism to the users, it is in the air that the traceability provision might affect fundamental rights lf users. However, there is absolutely no change in the way you regularly interact with any social media platform. As long as the users aren’t breaking the rules of the nation as well as the community guidelines, with posts that are offensive or downright dangerous.
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.
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.
The new intermediary rules introduced have multiplied the governmental regulations for all digital media platforms. Although there are significant differences among the various content regulation efforts, these rules do provide a certain degree of legal uncertainty and unnecessarily create a probability of liability for companies which may complicate the implications for accountability and the democratic process.
Not complying with the established legislative processes and obligations behest by the Constitution and the International Covenants, the government is effectually infringing the citizens’ fundamental rights and completely disregarding the universally recognized principles of freedom of expression and human rights. Additionally by burdening the intermediaries with additional regulations and compliances, it may consequently lead to the risk of self-censorship and unintended legal consequences. The government needs to acknowledge that the IT sector is dynamic and ever- evolving hence, the legislative deliberation processes should be transparent and non-hostile. The lawmakers ought to limit shifting the legal liability from those inducing harmful and illegal content to the intermediaries because governments that consider human rights at the spearhead of their deliberations can achieve more beneficial outcomes.
The IT Rules of 2021 would drastically alter how Indians interact with the internet. These Rules will now allow government to intervene in the matters of online media instead of going with process of regulation. End-to-end encryption may be phased out in India due to the additional traceability clause and monitoring regulations.
These IT restrictions are yet another example of the government's encroachment on individual freedom and it could severely weaken India's position as a democratic system. Many of the conditions laid down are unreasonable, and they further imperil multitudes of Indian netizens' freedom of speech and expression (protected under Art. 19) and privacy (protected under Art. 21). Thus, these rules will have radical implications on human rights of an individual, and will pose a hindrance to - exposure to data & information.
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 determine what content is acceptable and what is not?
Any such regulatory regime will almost certainly have a significant impact on citizens' digital rights, cause economic harm, and impede India's expanding cultural influence through the production of current and current video forms entertainment.
The new IT rules came as a much expected move from a government that disregards transparency and rush into half-baked laws with ineffective execution. On bare reading of the rules, lack of clarity and deliberation is seen as rules mention no key terms or mechanism to filter content that can be targeted. The rules indirectly force companies to lose intermediary status, giving leverage to the current government to control each bit of data. In simpler terms, looking at the government’s controversial past of imprisoning people without trials, through such rules citizens who are attempting to bring in some transparency into the system are being curtailed of their Freedom to speech and expression. A single piece of information so posted can call multiple perceptions, it can be mere criticism or facts according to people and simultaneously defamation for the BJP government. Hence social media’s role as an intermediary is of core importance Though the rules can come in handy to curb fake-news, but the BJP-led NDA administration has often attempted to restrict freedom of expression, hence it cannot be trusted with ethical implementation of such laws.
Moreover, the new rules forms an indirect censorsh