Author: Nistha Sinha, 2nd year LL.B. student at Symbiosis Law School, Pune.
With the advent of social media platforms viz. Facebook; there was a dynamic shift in the world in terms of information, broadcasting and communication. Freedom of Speech, Expression and Right to Privacy are all at crossroads with the recent government regulations that have been introduced. Although, the need for intervention with intermediaries such as social media sites and OTT (Over The Top) platforms like Netflix, Amazon etc. is categorized by the government under the pretension of removing illegal, fake and harmful content, but the problem that arises is with the meaning, scope and interpretation of ‘illegal, fake and harmful content’. The dilemma remains with the clash of two opinions: the government’s idea of regulation versus the users’ freedom of speech and expression along with their right to privacy. This paper aims to explore various angles involved in the implementation of social media regulations and how far will the government agenda go to ensure ‘internet safety’. The author has made four clear sections in her chapterization which dissects the research questions listed below in a systematic and clear manner.
- What is ‘illegal, fake and harmful content’?
- Is it truly regulation or censorship and what are the repercussions?
- Will the new rules curb fake news?
INTERMEDIARY AND IMMUNITY
An intermediary is any service provider which transmits, hosts and publishes user content without exercising editorial control over the content unlike traditional publishers. It hosts content created by regular users. Facebook, Twitter for instance would be regarded as social media intermediaries. For a long time, these intermediaries have enjoyed certain immunity as far as being liable for what content its users generate. These platforms host user generated content and the immunity shrugs the liability off them for the actions of users on their platform but only if they adhere to the government’s guidelines. It is a two-way benefit that these intermediaries and the government enjoy. Although, this does take away accountability from large platforms and might even violate user rights.
In order to understand why intermediaries receive immunity, a landmark judgment would be from the Bazee case. An obscene MMS was on sale on the website, bazee.com on 27th November, 2004. The item was removed from listing two days post the lodging of a complaint against it. Within these two days, the item had been sold several times. An investigation was launched and both the Managing Director of the website, and the Manager of the website were held vicariously liable and accountable for the obscene content. Charges laid against them were of Section 292 of the IPC and section 67 of the IT Act which cover crimes of similar nature, i.e. dissemination of obscene material, wherein Section 292 deals with such circulation through the means of print media like drawings, writings and pamphlets while Section 67 does the same through electronic media like websites. The Delhi High Court found the Managing Director criminally liable not in his personal capacity but vicariously.
Later, in 2012, The Supreme Court overturned this judgement. It was held that he wasn’t vicariously liable for the Company’s actions and couldn’t be implicated under the provisions of the IT Act for the company wasn’t arraigned as an accused in the case. This case brought about amendments in Section 79 of the IT Act to provide immunity to intermediaries, as a form of protection, in connection with content made available from third parties.
Social media intermediaries host networks of information with millions of people which may often be controversial and there is too much concentration of such power in one source. Hence, governments around the world felt the need of regulating these platforms. In India, such regulations come under the Intermediary Rules under the IT Act.
The Indian Express was the first to release the news about a “confidential” meeting. According to the report, amendments proposed to the rules under Section 79 of the Information Technology Act, 2000 (IT Act) were discussed in the said meeting. Section 79 of the IT Act envisages what is called a ‘safe harbour’ or immunity to intermediaries and provides them exemption from liability as mentioned earlier.
Soon after, the Ministry of Electronics and Information Technology (MeitY) announced that it would open up the proposed changes to public consultation. The proposals were to make changes to the liability exemptions for online platforms or service providers.
There are three types of entities envisaged in the new rules:
- Intermediaries: This is the broad ambit of entity that lies within the original meaning of the IT Act in section 2(w).
- Social Media Intermediaries (SMI): These entities enable interaction between two or more users on the internet.
- Significant Social Media Intermediaries (SSMI): These entities have user-limits as laid down by the Central Government.
Definitions of terms are laid out in Part I of the Intermediary Rules, and Part II and Part III contain the actual compliances and requirements. Part II provides for the regulation of intermediaries, including that of social media. Social media intermediaries are messaging or communication related intermediaries, such as WhatsApp or Telegram, and examples of media-related intermediaries are Facebook, Instagram and Twitter. This part is administered by the Ministry of Electronics and Information Technology (MeitY).
The regulation of digital news media is listed in Part III (there is a lack of understanding as to which news media Part III covers) and OTT platforms, such as Netflix, Amazon Prime and Disney+Hotstar. Part III is administered by the Ministry of Information and Broadcasting.
Section 66A of the IT Act was struck down by the Supreme Court of India in 2015. This section envisaged punishment for online communication of any information that is grossly offensive or has menacing character. The Court’s reasoning for striking down this section was because it was deemed vague. The Code of Ethics in the new rules apart from being loosely worded, goes against the Supreme Court’s judgment in Shreya Singhal- Section 66 A case:
“The rules…seek to regulate digital news media by imposing a ‘Code of Ethics’, with all manner of stipulations as to ‘half-truths’, ‘good taste’, ‘decency’ etc., and vest the power of interference ultimately with the central government as the chief regulator, at the highest of three tiers.”
A petition by LiveLaw challenging the new rules at the Delhi High Court argues that this exposes journalism to grievances or complaints alleging some content in its reporting or editorial is a ‘half-truth’ or adverse to the social or moral life of the country. Further, the main contention is that government oversight of news media content is nowhere within the scope of the act.
SOCIAL MEDIA AND FAKE NEWS
With close to 700 million users, India ranks in the digital world market amongst the top 3. Several states in the world are closely watching and mirroring (to an extent) its digital policy. The logic is simple, if social media companies accede to government criteria in India, they can’t refuse to do the same elsewhere.
The Indian government’s proposal gives itself a large range of new powers to censor or suppress (depending on individual outlook) content available on the internet, especially that of social media. This has led to a spark of heated debate with global technology giants and prompting comparisons to censorship in China.
Section 79 of the IT Act elaborates on the exemption from liabilities of intermediaries in certain cases. Section 79(2)(c) provides that intermediaries have to observe due diligence while discharging their duties, apart from also adhering to such other guidelines as prescribed by the Central Government. Accordingly, the Information Technology (Intermediaries Guidelines) Rules, 2011 were notified in April 2011.
The Parliament (Rajya Sabha) in its monsoon session admitted a calling attention motion on “Misuse of Social Media platforms and spreading of Fake News” in 2018 . The Minister for Electronics and IT, responded to the same on 26/07/2018. He made an in depth statement where he inter alia conveyed to the House that the Government was committed to strengthen the legal framework and make the social media platforms accountable under the law.”
The intention of the Ministry in planning these amendments, with regards to the above statement has been interpreted to ensure that intermediaries do not become the “venue or conduit for large-scale misuse of social media platforms and spreading of Fake News”.
Fake News in the Indian context would be referred to as, at the outset, misinformation or disinformation, which is spread fast and widely through various means, such as word of mouth, traditional media, and more recently through social media. While the digital forms of communication such as doctored videos, memes, unverified advertisements, propagated rumours etc., are at the source, arising from users of the intermediary social media platforms, it begs the question as to who should be accountable for it and to what extent?
The government’s reasoning for introducing stricter regulations in order to curb fake news from spreading seems reasonable as it can lead to a serious problem of mob violence. The authorities have enough reasons and more instances of such unruly violence breaking out over petty fake news the repercussions of which tend to be of a monumental scale.
One such instance would be the aftermath of the Pulwama attack. There was a rise of a trend on social media and messaging apps where people flooded these intermediaries with ‘false and misleading content’ in an attempt by people to make sense of the tragic violence that had unfolded. Another layer of problem arises in terms of accountability and liability of the source of misinformation, since a lot of misinformation shared was by conscience-stricken ordinary individuals who did so in good faith.
Data revealed by WhatsApp show that in comparison to people in other markets, Indians use the app differently. There is a rising trend to share as many stories and images as to send private messages. So much so that it ranks as one of the highest rates of forwarded messages of any country. This means that there is a widespread circulation of content that the users themselves did not author. It stands as a threat to this nation, and hence there is a need to find a way around it. In Mexico, for instance, in Whatsapp, a group of media outlets was put together that were fact-checking the elections. This ensured that the circulation of fake news and misinformation would be curbed to a great extent at a crucial time in the socio-political environment of Mexico.
Social media companies with over 5 million users in India have been mandated by the new rules to not only enforce traceability of end-to-end encrypted messages, but also instate local offices where senior officials would be required to deal with law enforcement and user grievances. Therefore it is a possibility that these rules may compel social media intermediaries to depart from their global practices to cater to Indian laws, leading to an implicit rift between their global platform and the platform accessible in India.
INTERNET SAFETY VERSUS INTERNET FREEDOM
The new set of rules and regulations to regulate social media platforms called the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (Rules) seek to reform the way messaging services, OTT platforms and news portals function in the Indian market.
The main focus on social media platforms viz. Twitter, Facebook and others, are issues like fake news, fake user accounts and monitoring of illegal content by platforms. Platforms with a larger user base garner more attention from the government’s regulations. A principle provision specifically in messaging services is the requirement to identify the originator of messages in case of mischief.
Although the government may put forth that its reasons to bring about stricter regulations are supposedly in the public interest, it still covers a large grey area where these rules may have a high tendency of violating the citizens’ freedom of speech, expression and right to privacy.
There seems to be a shift of onus on intermediaries by the government to regulate any material that may be considered illegal. Some of the major proposed changes are listed below.
- Monthly reminders: According to this proposal, intermediaries would be required to remind their users on a monthly basis that they need to comply with the rules and regulations. The view amongst critics is that this would lead to disinterest amongst users who are already known to pay close to no attention to legalities on social media.
- Tracing the originator: In an attempt to trace misinformation, any government agency could demand assistance from an intermediary. The response from the entity is mandated to be received within 72 hours. A rule that seems to be an indirect attack towards WhatsApp and other platforms which provide end-to-end encryption. This would mean that the private conversations that were taking place on these platforms could now have the government privy to them, indicating that encryption would not be allowed.
- Keeping your data: There is a pre-existing rule where Companies are required to store data for a period of 90 days in case a government agency asks for it. The new rules expand that period up to 180 days and that any government agency can ask a platform to hold it indefinitely. The problem here arises with the definition of “government agencies”. There are no specifications. Rather, the loose interpretation could mean any entity from the home ministry to a panchayat. Another issue arises from the fact that users need not be informed of the same.
- Proactive censorship: The proposed rules demand the intermediaries to “deploy technology-based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.” Essentially, the government is steering these intermediaries to use artificial intelligence to regulate what it considers illegal speech. The problem with this is that there are no clear checks on how this process would actually work.
- Indian or foreign: Any foreign intermediary with over 5 million users is required to incorporate a local company and set up a registered office in India, including the several legal expenses that it would, as a result, entail. There is no explanation as to how that number was fixed and on what grounds it would be evaluated.
There has been a growing trend of resistance worldwide against internet giants like Google and Facebook. These platforms once flourished mostly without much restriction. They were largely self-regulated. A stark example of censorship would be that of China. The country is known for its use of a system of internet filters, popularly called the Great Firewall. It successfully blocked unwanted content and shut out global tech companies. Further, in a 2017 review, The New York Times tallied that more than 50 countries had passed laws recently to strengthen control over how their users access information on the web.
Fundamental change will be brought about in the way the internet is experienced in India through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules”). Should the internet be regulated at the expense of the freedom of expression and right to privacy? Provisions such as the removal of end-to-end encryption would directly result in government intervention into the private lives of citizens. In a recent turn of events, the Indian government asked micro-blogging website Twitter to remove a slew of covid-19 related tweets as the situation worsened in the country. In their response, officials of MeitY responded by saying that “this was done in view of the misuse of these platforms by certain users to spread fake or misleading information and create panic about the COVID19 situation in India by using unrelated, old and out of the context images or visuals, communally sensitive posts and misinformation about COVID-19 protocols”. However, many are of the belief that this was done to suppress any anti-government sentiments or criticism towards the handling of covid situation in the country following the debacle of Kumbh Mela and the election campaign rallies that were widely held. The question that arises is regarding the idea of checks and balances.
With the advent of the new rules under the Information Technology Act, the Indian government can now coerce or force ‘significant social media intermediaries’ to take down any content that is deemed objectionable by the government. Apart from this factor, the new rules enforced upon these platforms like Facebook and Twitter the need to provide a monthly compliance report regarding all the complaints that were received and the actions that were taken in furtherance of the same. There are several instances where this action of the government seems to have taken authoritarian undertones. In the wake of the 26th January violence in 2021, the Modi government asked twitter to block several accounts along with taking action against those tweets that criticized the government with regards to the Farmer’s protest. In another instance, an online transparency project run by Harvard University (Lumen Database) reported how the government on April 23, 2021 had again asked Twitter to take down tweets that criticised the Modi government for its handling of the second wave of Covid-19.
It is a tragedy to have restrictions on freedom of speech and expression in the world’s largest democracy. The core of democracy itself is dissent however there is a fine line between positive criticism and misinformation in the name of dissent. The confusion regarding the same forms the base for censorship. Although instead of having the government order what must be regulated by these intermediaries, the approach towards censorship should have focused on expanding and strengthening the foundation of self censorship by social media and OTT platforms. The main reasoning behind the regulation of these platforms was to curb illegal content, misinformation and fake news. Yet, the most instances of censorship by the government were aimed at removing dissent from social media and what the government deemed obscene or inappropriate content from the OTT platforms. This is an indication as to the ways in which these regulations may pose a threat to basic freedom and rights of individuals in this country.
Internet Freedom Foundation, Latest Draft Intermediary Rules: Fixing big tech, by breaking our digital rights?, IFF FORUM (Feb. 25, 2021), https://internetfreedom.in/latest-draft-intermediary-rules-fixing-big-tech-by-breaking-our-digital-rights/ ↑
- Avnish Bajaj v. State’, 2008 (105) DRJ 721 ↑
- Indian Penal Code, 1860, § 292, Act no. 45 (India) ↑
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- Supra note 3 ↑
- Murali Krishnan, Social media in India fans fake news, THE INTERPRETER, (May 2, 2019, 10.00 PM),https://www.lowyinstitute.org/the-interpreter/social-media-india-fans-fake-news ↑
- Rasmus Kleis Nielson, Disinformation is everywhere in India, THE HINDU, (Mar. 25, 2019, 04.23 PM),https://www.thehindu.com/opinion/op-ed/disinformation-is-everywhere-in-india/article26626745.ece ↑
- Shashank Bengali, How WhatsApp is battling misinformation in India, where ‘fake news is part of our culture’, LOS ANGELES TIMES, (Feb. 4, 2019, 04.00 AM),https://www.latimes.com/world/la-fg-india-whatsapp-2019-story.html ↑
- “Lot Of Misinformation In India Spreads On WhatsApp”: US Expert, NDTV, (Sept. 15, 2018, 01.32 AM), https://www.ndtv.com/india-news/fake-news-politicised-misinformation-more-common-in-india-us-expert-1916786 ↑
- Supra note 7. ↑
- Tanu Banerjee, Ishaan Johri, Garima Kedia, India’s new rules for Facebook, WhatsApp and other social media platforms explained in five points, BUSINESS INSIDER INDIA, (Mar. 2, 2021, 11.40 PM),https://www.businessinsider.in/policy/news/indias-new-rules-for-facebook-whatsapp-and-other-social-media-platforms-explained-in-five-points/articleshow/81285658.cms ↑
- Ibid. ↑
- Rohan Venkataramakrishnan, Why are India’s new internet rules being called ‘Chinese-style censorship’?, SCROLL, (Feb.22,, 2019, 07.00 AM), https://scroll.in/article/913631/scroll-explainer-why-are-indias-new-internet-rules-being-called-chinese-style-censorship ↑
- Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 ↑
- Supra note 9. ↑
- Yuthika Bhargava, Govt asks social media platforms to remove 100 COVID-19 related posts, THE HINDU, (Apr. 25, 2021, 04.42 PM),https://www.thehindu.com/news/national/govt-asks-social-media-platforms-to-remove-100-covid-19-related-posts/article34406733.ece ↑