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What is your take on the new IT Rules for social media?
In Questions & Answers
Yogesh Agrawal
May 31, 2021
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.

Yogesh Agrawal

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