SOCIAL MEDIA/ OTT: THE CONTAINMENT ZONE
The Union government, on February 25, released guidelines for social media, digital news media and OTT (over the top) content providers, seeking to address concerns over transparency and accountability of such platforms. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the government said, will “empower ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights”.
While the guidelines have been in the works for over three years, the immediate trigger was the Republic Day violence in the national capital and the storming of the Red Fort during the tractor rally organised by farmers’ outfits protesting against the contentious new farm laws. The Union government and Twitter had been embroiled in a tug of war over an official diktat to block certain accounts which, according to authorities, were spreading misinformation about the farmers’ agitation or were stoking Khalistani sentiment. The new guidelines are being seen as an attempt to police global tech giants that have allegedly not been transparent about their functioning.
One of the game-changing provisions in the regulations is the near-total dilution of ‘safe harbour’ immunity hitherto enjoyed by both messaging intermediaries such as WhatsApp, Signal and Telegram, and social media intermediaries such as Facebook, Instagram and Twitter. Section 79 of the Information Technology Act, 2000, provides ‘safe harbour’ to intermediaries that host user-generated content and exempts them from liability for the actions of users if they otherwise adhere to government guidelines. But the new rules prescribe a due diligence code intermediaries must adhere to in order to stay on the right side of the Indian law.
The digital media ethics code lists 10 categories of content that social media platforms should not host. These include content that “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states or public order, incites offence, prevents investigation of any offence, is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, libellous, racially or ethnically objectionable, encourages money laundering or gambling and is otherwise inconsistent with or contrary to the laws of India”.
A platform, on receipt of information from a court of law or appropriate government agency about hosting prohibited content, will have to take it down within 36 hours. As empowered by Section 69A of the IT Act, the ministry of information and broadcasting can block said content in cases where “no delay is acceptable”.
The guidelines also prescribe a time-bound grievance redress mechanism to be followed by intermediaries. “The social media users, who run into crores, should also be given a proper forum for resolution of their grievances in a time-bound manner,” says Ravi Shankar Prasad, Union minister for electronics & information technology. They will have to appoint a nodal contact person for 24×7 coordination with the law enforcement agencies and publish a monthly compliance report.
Social media platforms with at least five million registered users will be defined as “significant social media intermediary”, which will need to follow additional regulations. These intermediaries must enable the tracing of the originator of contentious information on their platforms if required by a court of competent jurisdiction or a competent authority. The government has been periodically asking Facebook-owned WhatsApp to allow traceability, following incidents of mob lynching, but without success.
While the government claims that the new guidelines are a move to fight fake news, experts have raised concerns about violation of privacy, declared as a fundamental right by the Supreme Court in 2017. According to the New Delhi-based Internet Freedom Foundation (IFF), a digital liberties organisation, the govern
ment’s insistence on allowing traceability will break end-to-end encryption, which forms the basis of user privacy claimed by instant messenger platforms. Though the rules clarify that the traceability order may be passed only for serious offences, experts feel that categories such as ‘public order’ are broad in scope and can be misused.
“Due to excessive vagueness in the rules, there is a possibility of over-compliance by social media companies to escape liability. The collateral damage here is citizen free speech and privacy, which will be unconstitutionally hampered as a result,” tweeted IFF.
However, Indian authorities are not alone in demanding traceability. Those in the US, UK and Australia have also written to Facebook, indicating that the social media giant’s plan to extend end-to-end encryption on its messaging platforms should not exclude a means for lawful access to content. Brazil has proposed legislation to force companies to add a permanent identity stamp to the private messages people send. Singapore, Australia, Germany and Russia have prescribed laws to block unlawful content on social media.
Anticipating such criticism, Prasad, while launching the guidelines, said that the provision is not sought to be used to scrutinise messages between individuals. Significant social media intermediaries are also required to develop and deploy technology-based mechanisms to proactively identify content that depicts or simulates rape or child sexual abuse in any form. But IT experts argue that these automated mechanisms could mislead and result in harassment of innocent people.
Another provision that has invited criticism is the requirement by intermediaries to preserve information for 180 days for investigative purposes. The data has to be preserved even after users have deleted their accounts. Cyber law experts say that in the absence of a data protection law, the requirement could infringe on the privacy of users. They have also questioned the haste in releasing the code when a joint parliamentary committee is examining the bill on personal data protection.
The rules also call for a three-tier regulation mechanism for OTT platforms and require them to self-classify their content into five categories based on age suitability. The mechanism will include self-regulation by publishers, a self-regulating body headed by a retired judge empanelled with the government, and an inter-ministerial committee. The committee, headed by a joint secretary of the I&B ministry, can hear complaints against OTT platforms and will be empowered to delete or modify content to prevent incitement of a cognisable offence relating to public order. “The third layer of regulation should have been handled by a statutory body with independent members having the requisite credentials. Giving power to the Executive means anything and everything can be censored, more on political grounds than for any valid [reason],” says Utpal Borpujari, a National Award-winning filmmaker.
The code also mandates that OTTs take into account India’s multi-racial and multi-religious context and “exercise due caution and discretion”. Industry insiders believe this will impede creative freedom, particularly in light of the controversy around the Amazon Prime series Tandav. The makers of the series faced FIRs over a scene that purportedly offended Hindu sentiment. The matter was taken up by the I&B ministry and the makers agreed to delete the scene and tendered an apology to the court.
While the new code has been criticised by many as another case of Executive overreach, there is also broad agreement that it was a necessary step towards making digital platforms accountable. For instance, digital news media and OTT platforms will now have to furnish details of their ownership so that fake news cannot be peddled anonymously. Digital news websites will have to follow the programme code under the Cable Television Networks (Regulation) Act and Norms of Journalistic Conduct of the Press Council of India. The intent may be right but as IT industry body Nasscom pointed out, the rules need to be implemented transparently to avoid becoming onerous for the platforms. ■